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A  TREATISE 


ON  THB 


LAW  OF  REPLEVIN, 


AS  ADMINISTERED  IN  THE  COURTS 


THE  UNITED  STATES  AND  ENGLAND. 


BY  H.  W.  WELLS, 

COUKaSLLOB  AT  LAW. 


CHICAGO: 

CALLAGHAN  AND  COMPANY. 

1880. 


Entered  according  to  Act  of  Congress,  in  the  year  1879, 

By  CALLAGHAN  &  CO., 

In  the  Office  of  the  Librarian  of  Congress,  at  "Washington,  D.  C. 


T 


PREFACE. 


One  of  the  first  .books  treating  on  a  single  action  at  law 
was  Gilbert  on  Eeplevin,  published  in  1756.  This  was  fol- 
lowed by  Wilkinson  on  Eeplevin,  in  1825,  and  by  Morris,  the 
last  edition  of  which  is  still  fresh  from  the  press.  The  two 
former  works,  though  valuable  and  exhaustive  treatises  in 
their  time,  have  become  antiquated.  The  following  pages 
contain  an  attempt  to  state  the  law  of  replevin  as  generally 
applicable  in  this  country;  a  task  attended  with  difficulty,  in 
view  of  the  diflerences  in  local  laws.  , 

The  author  has  forborne  to  insert  copies  of  cases  in  the 
notes,  which,  while  it  would  have  swelled  the  number  of 
pages,  would  not,  as  is  believed,  have  been  attended  with  any 
corresponding  advantage. 

Tlie  work  contains  over  five  thousand  references,  and  cites 

over  three  thousand  authorities.  H.  W.  W. 

Peokia,  October  29,  1879. 

(iii) 


755854 


TABLE   OF  CONTENTS. 


CHAPTEK  I. 

HISTORICAL   INTRODUCTION. 

BKcnow. 

Origin  of  replevin  unknown 1 

First  appearance  as  a  part  of  the  lex  scripta 2 

Its  prior  existence  apparent 3 

The  statute  of  Marlbridge 4: 

Originally  an  action  to  test  the  legality  of  a  distress 5 

Distresses 6 

Usually  for  rent 7 

Could  not  be  sold 8 

Abuses  of  the  right  of  distress 9 

Replevin  defined 10 

The  writ  not  returnable,  but  gave  the  sheriff  power  to  try 

the  case 11 

If  the  defendant  claimed  to  own  the  property,  the  sheriff 

could  not  proceed 12 

Alias  and  plurles  writs  and  the  practice.     Pluries  alwaj-s 

returnable;  the  reason  therefor 13 

Cattle  driven  within  a  liberty  —  the  writ  non  omittas  ....  14 

The  writ  issued  only  at  Westminster 15 

Delay  occasioned  thereby 16 

Keplevin  by  plaint,  sheriff  authorized  to  proceed  without 

writ 17 

Proceeding  in  case  of  resistance 18 

In  case  of  no  resistance 19 

Ancient  method  of  trial , 20 

(V) 


VI  CONTENTS. 

SECTION. 

Both  parties  actors  or  plaintiffs 21 

Avowry  and  cognizance 22 

Justified  the  taking 23 

Kemoval  of  the  ease  to  the  court  of  King's  bench 2i 

The  writ  of  withernam  or  "  other  distress  " 25 

Defects  in  the  statute  Marlbridge 26 

The  statute  of  Westminster.     The  writ  of  second  deliver- 
ance and  the  first  appearance  of  the  bond 27 

Statute  Charles  II 28 

Statute  George  II 29 

Conclusion 30 


CHAPTER  II. 

GENERAL    PRINCIPLES. 

Definition 31 

Lies  for  chattels  wrongfully  taken  and  detained 32 

Recovery  of  the  specific  goods  the  primary,  and  of  value 

or  damages  the  secondary,  object  of  the  action 33 

It  is  a  mixed  action,  partly  in  renn  and  partly  in  personam  34 

The  writ  is  a  writ  of  riglit 35 

Different  forms  of  proceeding  in  different  States  substan- 
tially the  same 36 

Peculiarities  of  the  action  and  privileges  to  the  plaintiff. .    37 

Importance  of  tlie  action ,  . . . .   38 

The  right  to  present  possession  the  chief  question  in  con- 
troversy     39 

Statutory  provisions  concerning  delivery 40 

Formerly  would  lie  only  for  a  distress 41-43 

Similarity  between   this  action  and  trespass,  trover  and 

detinue 44 

Some  characteristics  of  the  action  of  trover  and  trespass 

compared  with  replevin 45,  46 

Distinction  between  trespass,  trover  and  replevin 47-50 

"Where  one  takes  forcible  possession  of  his  own  property, 

he  may  be  liable  in  trespass,  but  not  in  replevin 51 

Actual  detention  of  the  goods  necessary  to  sustain  replevin  52 


CONTENTS.  .  VII 

BBCTION. 

Eeplevin  in  cepit,  detinet  and  detinuet 53 

Wrongful  taking 54 

The  scope  of  the  investigation  in  this  action 55-57 

CHAPTEE  III. 

WHEN    AND    FOR   WHAT   IT   LIES. 

Replevin  lies  only  for  chattels 58,  59 

Chattels  severed  from  realty 60,  61 

Chattels  may  become  part  of  the  realty 62,  63 

How  far  the  question  as  to  what  is  or  is  not  real  estate 

may  be  litigated  in  replevin 64-67 

Buildings  while  fixed  to  land  are  part  of  the  realty 68 

Articles  severed  from  the  realty 69-72 

Severance  from  realty  does  not  change  title 73 

Growing  crops 74 

Actual  severance  not  necessary  to  give  property  the  char- 
acter of  personality 75,  76 

Chattels  fixed  to  the  land  of  another  without  his  consent.77,  78 

Title  to  real  estate,  when  evidence  in  replevin 79,  80 

Holder  of  colorable  title  caimot  recover  cliattels  severed. ,    81 

Defendant  holding  color  of  title 82 

Action  cannot  be  used  to  litigate  title  to  land 83 

Chattels  severed  through  mistake 84 

Chattels  severed  by  a  trespasser 85-87 

Severed  by  one  claiming  to  own  the  land 88 

Summary  of  the  rule • 89 

How  far  a  mortgage  on  real  estate  passes  title  to  chattels 
severed  therefrom 90-93 

CHAPTER  ly. 

PLAINTIFF   MUST   HAVE    THE    EIGHT    TO   THE   IMMEDIATE   AND 
EXCLUSIVE    POSSESSION. 

Plaintiff  must  have  a  right  to  immediate  and  exclusive 

possession 04 

Proof  of  wrongful  taking  not  necessary 95 


Viii  •  CONTENTS. 

SECTION. 

The  term  "property"  or  "property  in  the  plaintiff"  does 

not  mean  absohite  ownership 96 

Right  of  possession  and  ownership  may  be  in  different 

persons 97 

Property  of  bailee 98 

One  entitled  to  possession  for  a  special  purpose 99-101 

General    ownership   not   necessarily   determined    in    the 

action 102 

Borrower  cannot  set  up  a  title 103 

Carrier  cannot  show  title  in  third  party  as  a  defense  to  an 

action  by  the  shipper  or  consignee 104 

"The  legal  title  will  prevail  over  the  equitable 105 

An  assignee  in  bankruptcy 106 

Eight  to  present  possession  does  not  depend  on  former 

possessions 107,  108 

Prior  rightful  possession,  when  sufficient 109-112 

Rightful  possession  evidence  of  title 113 

Conflicting  claims  by  possession 114 

The  possession  must  be  under  a  claim  of  right 115 

But  need  not  be  under  a  claim  of  title.     Finder  of  prop- 
erty   116,  1 17 

The  lien  of  a  finder  for  reward  offered 118 

Finder  of  a  note  has  no  right  to  collect  it 119 

"Where  the  title  is  the  issue,  good  title  must  be  shown. . .   120 
The  nature  of  the  special  property  necessary  to  sustain 

replevin 121 

General  owner  usually  entitled  to  possession;  exceptions,   122 

Liens 123-125 

Tlie  same.     Taking  up  of  an  estray 126 

Goods  lost  at  sea 127 

Goods  in  possession  of  one's  servant 128 

Contract  for  purchase  of  property  does  not  necessarily 

confer  a  right  of  possession 129 

An  officer  levying  process  has  special  property,  and  right 

to  possession 130 

Possession  of  a  receiptor  to  an  officer 131 

An  agent  who  is  responsible  to  the  owner  has  sufficient 

possession  to  sustain  replevin 132 


CONTENTS.  IX 

SECTION. 

Wrongful  seizure  or  sale  by  an  officer  does  not  affect 

owner's  right 133 

CHAPTER  V. 

POSSESSION    BY    THE   DEFENDANT. 

Replevin  does  not  lie  against  one  not  in  possession  of  the 

goods.     Some  exceptions 134,  135 

The  writ  lies  only  for  property  in  existence 136 

Proof  that  the  defendant  was  about  to  take  possession 

will  not  sustain  replevin 137 

Neglect  to  deliver;  when  not  a  conversion 138,  139 

Taking  under  a  license  not  a  conversion 140 

A  firm  may  be  responsible  for  the  act  of  one  member  . .  .  141 
Taking  by  an  officer;  when  sufficient  to  render  him  liable 

in  this  action 142 

Possession  by  an  officer  not  possession  of  the  creditor  in 

the  writ 143 

Servant  not  usually  liable  for  holding  his  master's  goods.  144 
Where  defendant  lias  put  the  goods  out  of  his  possession.  145 
Or  put  it  out  of  the  officer's  power  to  execute  the  writ. . .    14d 

Fraudulent  transfer  of  goods 147 

Clothing  worn  on  the  person  not  subject  to  the  writ 148 

Possession  after  dismissal  of  an  action  of  replevin 149 

Defendant  acquiring  possession  with  plaintiff's  consent. .  150 
The  action  permitted  in  some  States  without  delivery  of 

the  goods 151 

CHAPTER  VI. 

JOINT   OWNERS. 

One  joint  tenant  cannot  sustain  replevin  against  his  co- 
tenant 152,  153 

Replevin  does  not  lie  for  an  undivided  interest 154 

Owners  of  separate  interests  cannot  join,  but  joint  owners 

must 155 


X  CONTENTS. 

SECTION. 

Action   bj  one  of  two  owners  does  not   lie  against   a 

stranger  for  the  joint  property 156,  157 

Landlord   reserving  a  share  of  the  crop  cannot  sustain 

replevin  until  his  share  is  set  apart 158 

Death  of  one  partner,  who  entitled  to  the  partnership 

property 159,  160 

By  agreement  of  all  joint  owners  the  right  to  possession 

may  be  in  one 161 

The  severance  of  the  joint  tenancy  by  agreement 162 

Severance  by  the  act  of  one  joint  tenant 163 

Purchaser  of  one  joint  tenant's  interest  at  sheriff's  sale. .    164 

Sale  by  one  partner  of  his  interest  in  goods 165 

An  officer  with  process  against  one  member  of  a  firm  may 

seize  all  the  partnership  goods 166,  167 

CHAPTER  YII. 

DESCRIFnON,    IDENTITY   OF   THE   GOODS. 

Plaintiff  must  prove  himself  the  owner  of  the  identical 

property  sued  for 168 

The  writ  must  describe  the  property  particularly 16\) 

The  property  must  be  capable  of  delivery 170 

Strictness  of  the  rule  in  regard  to  description,  and  the 

reason  for  it 171 

The  same.     A  description  good  in  trespass  or  trover  not 

sufficient  in  replevin 172-1 74 

When  the  sufficiency  of  description  is  a  question  for  the 

jury 175 

Synonymous    descriptions.      Illustrations   of,    and   when 

allowable 176 

The  rule  as  to  certainty  of  description 177-179 

Descriptions  which  may  refer  to  kind  or  quantity 180 

A  quantity  described  as  "about"  four  hundred  tons 181 

The  proof  as   to  description   must  correspond  with   the 

writ 182 

Exact  quantity  need  not  be  given  where  the  particular 

property  is  indicated 183 


CONfENTS.'  XI 

SECTION 


"Writ  of  return  and  verdict  may  follow  declaration  as  to 

description 1S4 

When  objections  to  insufficiency  of  description  must  be 

taken 185 

Keplevin  does  not  lie  for  goods  sold,  unless  tliey  are  in 
some  way  separated  from  the  others  or  in  some  way 

identiHed 186-189 

The  same.     Selections  by  purchaser;  when  sufficient.  190,  191 

Property  acquired  by  a  verbal  gift  without  delivery 192 

Tlie  general  rule  applicable  in  the  cases 193 

Symbolic  delivery 194 

Goods  distinguished  by  marks  or  by  separation 195 

CHAPTER  VIII. 

CONTUSION  OF  GOODS   OF   DIFFERENT   OWNERS  —  CHANGE  OF   FORM. 

Mixtures  or  confusion  of  goods  belonging  to  different 

owners 196 

Willful  mixture.     All  belongs  to  the  innocent  party..  197-201 

Changing  marks  to  produce  confusion 202 

Mixture  of  grain ;  when  each  owner  may  take  his  sliare.203-207 
Where  an  officer  is  induced  by  fraud  of  a  third  party  to 

levy  on  goods  not  the  property  of  the  defendant  in 

the  process 208,  209 

Change  of  Ibi-m,  and   the  effect  of  such  change  on  the 

rights  of  the  parties 210 

Rule  of  the  civil  law 211 

Goods  taken  by  mistake 212 

Change  of  form  does  not  change  the  title.     Where  the 

goods  can  be  identiiied,  owner  may  sustain  replevin. 

213,  214 
Goods  taken  by  a  thief  or  trespasser,  and  enhanced  in 

value  by  his  skill  or  labor 215 

Rule  where  the  goods  come  to  the  hand  of  an  innocent 

purchaser 216 

Owner  should  reclaim  his  property  before  its  value  is 

greatly  enhanced 217 


Xll  CONTENTS. 

BECTIOW. 

"Where  the  taking  is  wrong,  the  taker  cannot  change  the 

title  by  any  change  in  the  property 218 

Measure  of  damages  in  such  cases 219 

Change  of  form  by  agreement  does  not  affect  the  rights 

of  the  parties 220 

Property  taken  and  annexed  to  real  estate  or  other  thing 

which  forms  the  principal 221 

Description  to  be  employed  where  the  property  has  under- 
gone a  change 222 

CHAPTEE  IX. 

CHATTEL   MOETGAGE. 

Kights  of  a  mortgagee  in  a  chattel  mortgage 222a 

The  mortgageor  has  an  interest  which  may  be  seized  and 

sold  on  execution 222b 

Pights  of  the  mortgagee  against  third  parties 223 

CHAPTEE  X. 

PKOPERTT    SEIZED   FOK   A  TAX. 

Property  seized  for  the  payment  of  a  tax  not  repleviable.  224 
Irregularity  in  using  the  warrant  does  not  change  the 

rule 225 

'Nor  the  fact  that  no  taxes  are  due  from  the  party  whose 

goods  are  seized 226 

Prohibition  extends  to  goods  seized  for  tax  due  the  United 

States  or  an  incor|)orated  village 227 

The  usual  form  of  the  prohibition  is  a  requirement  in  the 

affidavit 228 

The  jealousy  with  which  the  courts  look  upon  attempts 

to  evade  this  requirement 229 

Questions  of  double  assessment  cannot  be  tried  in  this 

action 230 

Property  seized   for   the  payment   of  a   tax   due   from 

another  person 231,  232 


CONTENTS.  Xlll 

SECTION. 

The  prohibition  of  this  remedy  does  not  affect  the  rights 

of  the  party  to  employ  any  other  proper  means 233 

The  action  permitted  where  the  plaintiff  does  not  ask 

delivery  of  the  property 234 

The  prohibition  does  not  extend  to  a  purchaser  at  tax  sale  235 
The  bare  assertion  of  the  defendant  that  the  goods  are 

seized  for  tax  not  sufficient 236 

The  warrant  must  be  regular  on  its  face,  and  purport  to 

be  issued  by  competent  authority 237 

It  must  appear  to  be  for  a  tax  which  by  legal  possibility 

may  be  valid 238 

The  seizure  must  be  by  an  officer 239 

Where  an  officer  goes  out  of  his  bailiwick 240 

The  prohibition  extends  to  goods  seized  for  payment  of  a 

fine 241 

Eeplevin  against  a  purchaser 242 

CHAPTER  XI. 

GOODS  IN  THE  CUSTODY  OF  TDE  LAW. 

Replevin  does  not  lie  for  goods  in  the  custody  of  the  law  243 

Limitation  upon  this  rule 244 

Lies  for  goods  wrongfully  seized  by  an  officer  upon  process  245 
Of  the  right  of  a  person  to  take  possession  of  his  goods 

which  have  been  wrongfully  seized  by  an  officer  ....  246 
Replevin  does  not  lie  for  goods  in  the  hands  of  a  receiver 

of  court 247 

Does  not  lie  at  the  suit  of  a  defendant  in  execution  against 

the  sheriff ' 248 

Kor  the  suit  of  a  grantee  of  such  defendant  after  tlie 

seizure   249,  250 

Qualifications  of  the  rule 251 

Does  not  lie  for  liquors  seized  under  an  act  to  prevent  the 

sale  of  intoxicating  beverages 252 

But  the  writ  was  allowed  where  the  seizure  was  under  an 

ordinance  which  had  been  declared  void  by  a  court  of 

competent  jurisdiction 253 


Xiv  CONTENTS. 

BECTIOK. 

Does  not  lie  for  cattle  legally  impounded 25i 

Lies  for  powder  seized  under  an  ordinance  prohibiting  its 

introduction  in  large  quantities  into  a  city 255 

Does  not  lie  for  property  taken  on  a  writ  of  replevin  until 

after  the  former  case  is  decided 256 

The  distinction  between  a  writ  of  replevin  and  an  execu- 
tion or  attachment 257 

Cross  replevins  not  allowed 258,  259 

The  sheriff  charged  with  the  execution  of  process  must 

obey  it  at  his  peril 260,  261 

Replevin  lies  for  goods  wrongfully  sold   by  sheriff  on 

execution 262 

Distinction  between  replevin  for  the  goods  and  an  action 

against  the  officer  as  a  trespasser 263 

Writ  of  replevin.     When  and  how  far  a  protection  to  the 

officer  serving  it 264 

Whether  the  writ  authorizes  a  seizure  of  the  goods  from 

a  stranger 205,  206 

Writ  of  return  authorizes  seizure  only  from  the  person 

named 267 

Keplevin  lies  for  exempt  property  wrongfully  seized 268 

The  aid  of  the  statute  must  be  invoked 269 

The  exemption  a  personal  privilege 270 

Damages  and  costs  in  such  cases 271 

Jurisdiction  in  replevin,  where  goods  have  been  wrong- 
fully seized 272,  273 

The  rule  in  Freeinan  v.  Howe 274 

The  doctrine  in  this  case  considered 275-282 

The   power,   duty   and   responsibility    of  the   sheriff  in 

serving  the  writ  of  replevin 283 

He  must  see  that  the  writ  is  in  form 284 

And  that  it  issue  from  a  court  of  competent  jurisdiction 

to  issue  such  a  writ 285 

The  writ  does  not  authorize  a  seizure  of  goods  from  the 

person  of  the  defendant 286 

The  right  of  an  officer  to  break  and  enter  a  dwelling  to 

take  goods 287 

Parties  bound  to  know  the  sheriff. 288 


CONTENTS.  XV 

BECTION. 

Duty  of  the  sheriff  to  take  bond;  his  liability  in  respect 

to  the  bondsmen 289 

Extent  of  the  sheriff's  liability 290 

Return  by  sheriff  of  goods  wrongfully  seized  by  him.. .  .   291 

Duty  of  a  sheriff  on  receiving  a  writ  of  replevin 292 

Duty   of    the   sheriff    with   respect    to    serving   articles 

claimed  to  be  real  estate 293 

The  liability  of  the  officer  a  personal  one 29^ 

The  sheriff"  liable  for  the  acts  of  his  deputies 295 

Disputes  between  deputies  of  the  same  sheriff  settled  by 

the  sheriff. 296 

The  officer's  retnra 297 

As  to  the  service  of  a  writ  of  replevin 298 

Effect  of  the  replevin  of  property  seized  on  execution. . .   299 

Special  property  created  by  a  levy  on  goods 300 

Justification  by  an  officer 301 

The  defense  by  sheriff  when  goods  seized  are  replevied 

from  him 302,  303 

CPIAPTER  XII. 

TAKING   BY   THEFT,    FORCE   OR   FRAUD. 

Taking  by  theft,  trespass  or  fraud 804 

Thief  acquires  no  title  to  the  stolen  goods 305 

Sale  in  market  overt  passed  title 3o6 

Markets  overt  unknovs^n  in  this  country 307 

Replevin  of  stolen  goods  does  not  depend  on  the  convic- 
tion of  the  thief. 308 

A  trespasser  acquires  no  title,  and  can  convey  none  by 

any  sale 309 

Replevin  lies  for  goods  obtained  by  fraud,  even  from  one 

who  innocently  purchases 310 

Innocent  purchaser  from  a  thief  may  elect  to  affirm  the 

contract  as  against  the  thief. 311 

Replevin  by  the  owner  for  goods  sold  by  a  bailee  without 

authority 312 

The  same.     Rights  and  authority  of  a  bailee 313,  314 


XVI  CONTENTS. 

BECriOS. 

JAeplevin  lies  against  a  carrier  for  goods  wrongfully  taken 
and  committed  to  his  care,  and  has  no  lien  for  freight 

on  such  goods 315 

Eeplevin  lies  where  a  bailee  without  authority  pledges 

goods  in  his  care 316 

When  agent  or  bailee  with  authority  sells  at  a  less  price 

than  his  instructions  warrant 317 

Fraudulent  purchaser  takes  a  title  voidable  at  the  election 

of  the  defrauded  vendee 318 

Observations  on  the  rule 319-321 

Not  material  when  the  fraudulent  representations  were 

made 322 

Goods  paid  for  with  a  worthless  note,  counterfeit  money, 

or  stolen  goods 323 

Replevin  against  attaching  creditors  in  such  cases 324 

Or  against  an  assignee  for  the  benefit  of  creditors 325 

Does  not  lie  for  goods  sold  to  enable  the  purchaser  to 
violate  the  law,  even  though  there  may  have  been 

fraud  in  the  purchase 326 

For  goods  sold  to  an  infant,  when  he  avoids  payment..  . .   327 

For  goods  obtained  by  duress 328 

The  general  rule  stated 329 

Fraudulent  intention  of  purchaser  must  exist  to  avoid  a  sale  330 
Diligence  required  of  one  who  would  rescind  a  sale  by 

fraud,  return  or  tender  of  the  consideration 331 

What  amounts  to  a  return  of  property, 332 

Does  not  lie  against  an  innocent  purchaser  from  a  fraud- 
ulent purchaser 333 

The  distinction  between  acquiring  goods  by  theft  or  tres- 
pass and  fraudulent  purchase 334-337 

Kule  where  goods  fraudulently  purchased  are  taken  in 

payment  of  a  pre-existing  debt 338 

Sales  of  goods  upon  condition 339 

Non-payment  for  goods  sold  on  credit  does  not  warrant  a 

rescission  of  the  contract 340 

Rule  where  the  vendor  stipulates  to  retain  title  or  pos- 
session imtil  payment 341,  342 

Waiver  of  conditions  of  sale 313 


CONTENTS.  XVll 

CHAPTEll  XIII. 

THE   DEMAND. 

BKCTrOK. 

General  principles  of  the  law  requiring  a  demand Sii 

Demand  not  necessary  when  the  defendant's  possession  is 

wrongful,  necessary  in  all  cases  when  it  is  rightful. 345-347 
Where  taking  is  by  a  thief  or  trespasser,  from  a  thief  or 

trespasser 348 

Proof  of  a  wrongful  taking  always  sufficient 349 

The  legal  effect  of  a  demand  and  refusal 350 

Where  goods  are  converted  no  demand  necessary.    Mean- 
ing of  the  term  "  conversion  "  as  here  used 351 

What  amounts  to  a  conversion 352 

There  can  be  no  conversion  without  control  over,  or  inter- 
ference with,  the  property 353-355 

Purchaser  at  sheriff's  sale 356 

Possession  taken  only  as  an  act  of  charity  or  to  preserve 

property,  not  a  conversion 357 

Borrower  cannot  set  up  title  in  himself 358 

Finder  of  property  entitled  to  a  demand 359 

The  taker  up  of  stray  animals 360 

Purchaser  of  property  payable  in  installments,  entitled  to 

a  demand  before  forfeiture 361 

LTnauthorized  interference  with  the  goods  of  another. . . .   362 
Hire  of  property  for  a  special  purpose  may  not  use  it  for 

another  363 

Innocent  receiver  of  stolen  goods  may  be  liable  for  con- 
version      364 

What  is  rightful  possession 365 

Fraudulent  purchaser,  or  attaching  creditor  of,  not  enti- 
tled to  demand 366 

A  fraudulent  taking  always  wrongiui 367 

Necessary  where  an  officer  seizes  goods  from  defendant 

named  in  his  process 368 

Contra  when  he  seize  goods  from  another 369 

Inn-keeper,  or  carrier,  when  entitled  to  a  demand 370 

When  demand  must  be  made 371 

The  effect  of  failure  to  prove  demand 372 . 

2 


Xviii  CONTENTS. 

BECTIOV. 

Waiver  of  demand  by  defendant 373 

Claim  of  ownership  by  defendant 374 

On  whom  the  demand  must  be  made 376 

No  particular  form  necessary 376 

General  rules  governing  the  demand 377,  378 

Demand  by  a  father  or  guardian 37*J 

Kefusal  to  deliver,  the  true  grounds  must  be  stated 380 

The  same.     What  is  a  sufficient  excuse  for  non-deliv- 
ery   381-383 

CHAPTER  XIY. 

THE   BOND. 

No  bond  required  by  common  law 384 

The  English  statutes 385 

The  English  statutes  the  basis  of  the  law   concerning 

bond  in  this  country 380 

Assignment  of  the  bond  to  defendant 387 

The  bond  a  prerequisite 388 

Permission  to  prosecute  as  a  pauper  does  not  excuse  giv- 
ing bond 380 

Wealth  of  the  plaintiff  no  excuse 390 

Delivery  cannot  be  made  without  bond  given 391 

The  bond  must  conform  to  the  statute 393 

The  bond  not  necessary  to  the  trial 393 

Where  the  sheriff  is  a  party 394 

Defendant  may  give  bond  and  retain  the  property 395 

Bond  not  necessary  where  the  plaintiff  does  not  ask  de- 
livery . .  V 396 

Description  of  the  bond 397 

Objects  and  purposes  of  the  bond 398 

The  return  of  the  bond  with  the  writ 399 

Amount  of  penalty  in  the  bond,  how  ascertained 400 

Sheriff  may  take  the  property  for  purpose  of  appraise- 
ment    401 

Sheriff  not  required  to  prepare  bond,  duty  of  the  party.  40£ 

To  whom  payable 403 


CONTENTS.  XIX 

SECTION. 

Tlioug]i  defective  as  a  statutory  bond  it  may  be  good  as  a 

common  law  obligation 404,  405 

By  whom  it  must  be  executed 406 

Bond  may  be  executed  by  a  stranger  to  the  suit 407 

How  executed 408 

Wlien  it  may  be  amended 409 

Detect  in  the  bond,  when  and  how  taken  advantage  of.  . .  410 

Bequisites  of  the  bond 411,  412 

The  conditions  separate  and  independent  of  each  other. .  413 

The  conditions  to  prosecute  without  delay 414 

To  prosecute  with  effect 415 

What  is  prosecution  with  effect 41G 

Prosecution  in  inferior  court  when  the  case  is  appealed, 

not  sufficient 417 

Death  of  party  pending  suit 418 

The  condition  to  return 419 

Offer  to  return  unaccompanied  by  a  tender,  not  a  per- 
formance    420 

This  condition  requires  the  return  of  the  identical  goods,  421 

In  as  good  order  as  when  taken 422 

Judgment  for  a  return  a  breach  of  the  condition 423 

The  bond  does  not  relate  to  otlier  claims  than  the  suit  in 

which  it  is  given 424 

Actual  delivery  of  the  goods  on  the  writ  precedes  liability 

on  the  bond 425 

Actual  return  in  as  good  order  a  compliance  with  this 

condition 426 

General   principles   governing   the   construction  of   the 

bond " 427 

Bight  of  action  accrues  upon  a  failure  to  keep  any  of  the 

conditions 428 

Bights  of  the  securities 429-431 

Any  material  alteration  in  the  bond  avoids  it 432 

The  same.    Securities  bound  by  acts  of  the  principal. . . .  433 

But  a  settlement  does  not  bind  nor  discharge  them 434 

Submission  to  arbitration  does  not  bind  securities 435 

Technical  defenses  to  bond  not  favored 436,  437 

The  liability  of  a  guardian  personal 438 


XX  CONTENTS. 

SECTION. 

Where  tlie  words  are  ambiguous  the  intent  will  govern. .   439 

Proceedings  on  the  bond  governed  by  statute 440 

Debt  a  proper  form  of  action 441 

Assignment  of  the  breaches 442 

Proceedings  in  the  replevin  essential  to  sustain  suit  on 

the  bond 443 

The  material  facts  to  be  set  up 444 

When  bond  is  lost  from  the  files 445 

Defense  to  suit  on  bond 446 

When  ownership  of  property  is  settled  in  the  replevin 

suit 447 

When  not  so  settled,  it  may  be  set  up  in  suit  on  the  bond.  448 

Defense  which  should  be  made  in  the  replevin  suit 449 

Miscellaneous  rules  in  suit  on  bond 450 

Variation  between  bond  and  affidavit  in  description,  no 

defense 45 1 

Submission  of  the  replevin  suit  to  arbitration  is  a  defense.  452 
Value  of  the  property  stated  in  bond  how  far  binding  . .  453 
Where  the  value  of  a  number  of  articles  is  stated  at  one 

gross  sum 454 

Effect  of  the  death  or  destruction  ot  the  property 455 

Parties  to  suit  on  bond  cannot  discharge  it  to  the  injury 

of  the  sheriff 456 

Damage  on  bond  how  assessed 457-459 

Release  of  bond  by  seizure  on  another  writ  pending  suit.  460 

Limitation  to  suit  on  bond 461 

Suit  on,  by  sheriff,  may  be  in  his  individual  name 462 

CHAPTER  XV. 

THE   WRIT. 

To  whom  addressed,  and  the  mandate 463 

Must  contain  summons  to  the  defendant 4()4 

Must  describe  the  particular  property 465 

Alias  writ 466 

Writ  lies  for  property  in  the  jurisdiction  of  the  court 

when  it  issued 467 


CONTENTS.  XXI 

SECTION. 

The  return  of  the  writ 468 

At  common  law  plaintiff  took  the  property  as  his  own, 

and  might  so  dispose  of  it 469 

Property  now  regarded  as  in  the  custody  of  the  law  ....   470 

Injury  to  goods  while  in  plaintiff's  possession 471 

Eights  of  the  plaintiff  to  property  taken  on  the  writ. 472,  473 

Delivery  on  the  writ  does  not  confer  title 474 

Where  the  action  is  for  a  distress 475 

The  effect  of  the  writ  on  the  rights  of  tlie  parties  pend- 
ing the  suit 476-480 

CHAPTER  XVI. 

THE   RETURN. 

The  Return.     General  principles 481,  482 

Plaintiff  not  liable  for,  unless  so  ordered  by  the  court.  . .   483 

Duty  of  plaintiff  when  return  is  adjudged 484 

Return  ordered  only  where  return  appears  just 485 

Return  may  be  adjudged  to  one  of  several  defendants. . .   486 

Adjudged  only  when  the  defendant  claims  it 487,  488 

Formal  prayer  for  return  not  essential 489,  490 

Judgment  for  value  rendered  only  where  a  return  would 

be  proper 491 

When  a  defendant  pleads  property  in  a  third  person. 402,  493 
Judgment  for  return  does  not  settle  the  question  of  title.  494 
Judgment  for  return  generally  follows  a  verdict  for  the 

defendant 495 

The  riglits  of  the  parties  at  the  time  the  return  is  asked 

will  govern 49f5 

The  same.     Illustrations  of  the  rule 497,  498 

!Never  ordered  unless  it  appear  that  the  plaintiff  obtains 

deliverence  on  the  writ 499 

Return  of  the  young  of  animals  born  after  suit  began  . .   600 

Where  defendant  avoids  trial  on  the  merits 501-504 

Liquor  sold  to  enable  the  vendee  to  violate  the  law 505 

When  the  parties  are  joint  tenants 506 

When  the  property  is  lost  or  destroyed 607 


XXU  CONTENTS. 

BECTTON. 

When  the  question  of  return  should  be  determined 608 

Eeturn  or  delivery  in  States  adopting  the  code 509 

The  writ  of  return  must  describe  the  goods 51C 

CHAPTER  XVII. 

DAMAGES. 

By  common  law  damages  allowed   to  plaintiff,  not   to 

defendant 511 

General  rule  now  is  that  damages  are  awarded  to  the  suc- 

ful  party 512 

Allowed  only  as  an  incident  to  the  proceedings  for  pos- 
session      513 

May  be  allowed  to  both  parties 514,  515 

Plaintiff  cannot  dismiss  so  as  to  avoid  a  hearing  in  the 

question  of  damages  or  return 516 

Where  the  suit  is  dismissed  for  informality 517-519 

The  rules  applicable  in  actions  of  torts  generally  apply 

in  replevin.     Distinctions  stated 520 

Damages  to  plaintiff 521 

Damages  to  defendant  not  allowed  unless  a  return  of  the 

property  is  claimed 522-524 

The  rules  for  estimating  damages 525 

Nominal  damages 526,  527 

Party  claiming  damages  must  show  the  extent  of  his  in- 
juries by  proof 528,  529 

Compensation  the  object  of  the  award 530 

How  the  amount  of  compensation  is  ascertained 531 

When  the  goods  have  changed  in  value 532 

The  rule  giving  compensation  applies  only  in  cases  where 

no  malice  or  willful  wrong  is  charged 533 

When  taking  was  wrongful,  damage  estimated  from  the 
time  of  taking,  otherwise  from  the  time  of  conver- 
sion     534 

Depreciation  in  value  a  proper  element  of  damages 535 

The  rule  not  uniform 536 

Interest  as  a  measure  of  damages 537 


CONTENTS.  XXm 

SECTION. 

How  assessed 538 

When  a  part  of  the  goods  only  are  found 539 

In  suit  on  bond 540 

When  the  suit  is  concerning  the  validity  of  a  sale 541 

Where  defendant  is  a  stake  holder 542 

Yalue  of  property  when  allowed  on  damages 543,  544 

When  value  is  reijarded  as  attaching 545 

Value  at  the  time  of  conversion 546,  547 

The  rule  is  applicable  when  the  value  of  the  property  is 

stable.     Rule  when  the  value  is  changing 548 

The  highest  value  after  taking  and  before  trial 549-552 

Qualifications  of  the  rule.     Suit  must  be  brought  within 

a  reasonable  time 553,  554 

What  is  the  highest  market  value 555 

Further  qualifications  of  the  rule 556 

Measure  of  damages  in  suit  for  a  note  or  bill 557-559 

Yalue  of  coin  sometimes  estimated  in  currency 560 

Damages  occasioned  by  party's  own  act  not  allowable  ...   561 

The  place  where  the  value  is  considered  attaching 562 

The  same.     General  rule  is  value  where  the  goods  were 

detained,  value  in  another  market  may  be  evidence..   563 

The  same.     Expense  of  transportation,  etc 564-566 

Trespasser  cannot  recover  for  his  labor  in  increasing  the 

value  of  goods   567 

Or  make  a  profit  out  of  his  wrongful  taking 568 

Statement  of  value  in  the  affidavit  usually  binds  the  plain- 
tiff, but  not  the  defendant 569 

Appraisment  does  not  bind  either  party 570 

Special  damages  must  be  specially  pleaded 571 

Loss  of,  by  interruption  of  business 572,  573 

Loss  of  real  or  probable  profits 574 

Party  claiming  damages  must  do  what  he  can  to  avoid 

loss 575 

Expense,  counsel  fees,  etc 576,  577 

Expense  of  taking  and  moving  the  property 578 


XXIV  CONTENTS. 

CHAPTER  XYIII. 

DAMAGES,    CONTINUED. 

BECTIOW. 

Value  of  tlie  use  when  proper  to  be  allowed 579 

This  applies  only  in  replevin 580 

The  same.     Not  allowed  a  pledgee,  or  an  officer  of  the 

law 58 1,  582 

The  same.     Not  allowed   unless  the  property  is  chiefly 

valuable  for  its  use 583 

Where  the  successful  party  has  only  a  limited  interest.584:-586 
The  same.     As  between  the  owner  ot  a  limited  interest 

and  an  intruder 587-589 

Damages  against  officer  for  wrongful  seizure 500 

The  sajne.     Against  officer  acting  in  good  faith 591 

The  same.     Officer  acting  with  malice 592 

The  same.     Where  the  suit  is  by  the  general  owner 593 

The  same.     Where  the  suit  is  by  one  without  right 594: 

Damage  ao-ainst  officer  for  losing  bond 595 

The  same.     For  other  failure  in  his  duty 596 

In  suits  between  different  officers 597 

Damages  between  joint  owners 598,  599 

Effect  of  the  death  or  destruction  of  the  property  . .  .600-601 
The  same.     Death  of  slaves  pending  suit  does  not  affect 

the  right  to  judgment  for  value 602,  603 

Judgment  when  the  property  is  lost  or  destroyed 604 

Damao-es  only  allowed  where  the  defendant  is  entitled  to 

a  return 605 

Option  of  the  defendant  to  pay  value  or  return  the  goods. 

When  allowed 606 

Damages  to  compel  return 607 

When  and  how  assessed 608,  609 

Yalue  and  damages  should  be  separately  assessed 610 

Recovery  cantiot  be  for  a  greater  sum  than  is  claimed.  . .  (511 
Damao-es  for  property  severed  from  real  estate,  value  as  a 

chattel 612,  613 

The  same.     Coal  dug  or  timber  cut 614 

The  circumstances  under  which  the  severance  was  made, 

material  to  be  considered 615 


CONTENTS.  XXV 

BECTION. 

Trees  cut  on  land  of  another  by  mistake 616 

Tlie  general  rule  stated,  applicable  to  various  changes  in 

the  property 617 

Vindictive  damages,  when  allowed 618,  619 

The  same.     The  meaning  of  the  terms  punative,  exem- 
plary, and  vindictive 620-621 

The  same.     Actual  malice  or  gross  carelessness  must  be 

shown 622 

!No  general  rule  exists  for  estimating 623-626 

Party  who  acts  in  defiance  of  another's  rights,  is  respon- 
sible for  all  consequences 627 

Yindictive  damages  against  officers  of  the  law 628,  629 

Accounts  cannot  be  adjudged  in  replevin 630 

But  questions  of  set  off  may  be  investigated  in  certain 

cases 631 

Illustrations  of  the  rule 632 

Set  off,  to  suit  on  bond 633 


CHAPTEE  XIX. 

PARTIES. 

Parties  who  may  be  plaintiff  and  defendant 634 

Owners   of   distinct   interests   cannot   be  joined.     Joint 

owners  must  be  joined 635 

Trustees,  executors  or  administrators  may  be  plaintiffs.. .   636 

Suit  against  an  executor  or  administrator 637 

A  parish  or  corporation  may  sustain  the  action 638 

Whether  an  assignee  of  the  property  in  the  possession  of 

another  can  sue 639 

Sale  of  property  permitted,  notwithstanding  adverse  pos- 
session of  another 640-642 

A  father  may  sue  for  property  of  his  minor  child 643 

Servant  cannot  sue  for  his  master's  goods 644 

Receiptor  of  an  officer 645 

Attaching  creditor  not  liable  jointly  with  the  officer 646 

Minor  cannot  sue 647 


XXVI  CONTENTS. 

CHAPTER  XX. 

PLEADING. 

SECTION. 

Pleading 648 

Established  rules  must  be  followed 649 

The  aflidavit 650 

A  prerequisite  to  delivery 651 

Must  not  be  entitled 652 

Must  be  drawn  to  meet  the  evidence 653 

Takes  the  place  of  the  plaint 654 

By  whom  it  may  be  made.     General  requisites 655 

Meaning  of  the  term  oioner 656 

Defects  in;  when  taken  advantage  of,  and  how 657 

The  truth  or  falsity  ot  the  affidavit  not  in  issue 658 

Statement  of  value  of  the  property 659 

Statement  of  value  in  affidavit;  how  far  binding 660 

Must  state  that  the  property  was  not  taken  for  any  tax, 

assessment  or  fine 661 

Or  upon  any  execution  or  attachment,  etc 662 

Or  on  any  writ  of  replevin  against  the  plaintiff. 663 

Strict  compliance  with  this  condition  required 664 

It  must  contain  a  correct  description  of  the  property. 

Amendments 665 

The  declaration.     Several  counts  ioined ^'6^ 

Eights  of  parties  under  a  single  count 667 

Count  in  trover  for  goods  not  delivered 668 

Value  of  such  goods  usually  given  in  damages 669 

Form  of  the  declaration;  wrongful  detention 670 

The  same.     Must  be  drawn  to  meet  the  proofs 671,  672 

The  same.     Allegation  of  time  and  place 673,  674 

Averment  of  wrongful  detention  essential 675 

Evidence  of  title  need  not  be  stated 676 

The  same.     An  averment  of  a  right  of  possession  suffi- 
cient   677,  678 

Where  the  complainant  follows  the  statute 679 

Declaration  should  state  value  of  the  goods 680 

As  to  the  averment  of  deman(?   681 

Must  claim  damages 682 


CONTENTS.  XXVll 

CHAPTER  XXI. 

PLEADING    BY    DEl^ENDANT. 

BECTION. 

General  rules;  each  defendant  may  plead  separately 683 

Separate  defenses 684 

PJea  of  title;  must  show  title  when  the  suit  began 685 

Plea  to  title  or  right  of  possession 686 

Plea  by  an  officer 687 

Plea  of  property  in  defendant 688 

Property  in  a  third  person 689 

This  plea  does  not  amount  to  an  admission  of  taking.690,  691 
The  same.     Right  of  defendant  to  return  under  this  plea. 

692-695 

The  traverse 696,  697 

Replication 698 

Surrender  to  a  third  party  by  order  of  court 699 

CHAPTER  XXII. 

PLEA    OF    NON    CEPIT   AND   NON   DETINET. 

Plea  of  non  cepit  or  non  detinet 700 

Admission  in  the  pleadings  not  evidence  as  to  matters 

previously  put  in  issue 701 

Issues  admitted  cannot  be  denied 702 

Special  statutory  rules 703 

Office  and  effect  of  a  plea  of  non  cepit 704 

Form  of  plea  of  non  cepit 705 

Other  pleas  may  be  joined  with 706 

Plea  of  cepit  in  alio  loco 707 

Non  detinet  is  like  non  cepit 708 

Illustrations  of  the  use  of  this  plea 709,  710 

Disclaimer  of  interest  in  property  no  defense 711 

Plea  of  justification;  the  burden  is  on  the  party  to  sustain 

his  plea 712 

General  rules  governing  plea  of  non  detinet 713 

If  the  defendant  claims  the  property  or  damages  he  must 

file  a  plea  so  stating 714 


XXVlll  CONTENTS. 

CHAPTEE  XXTII. 

REPLEVIN   OF   A   DISTRESS. 

SECTION 

The  right  of  distress 715 

Origin  of  the  right 716 

The  right  to  replevy  the  distress 717 

Right  of  distress  in  this  country 718 

Distress  not  a  suit  at  law 719 

Replevin  of  a  distress 720 

Rights  of  the  landlord 721 

Sublessor's  liability 722 

Payment  to* landlord;  who  is  a  joint  tenant 723 

Rights  of  the  tenant 724 

The  avowry  and  cognizance 725 

Distinction  between  an  avowry  and  cognizance 726 

The  exactness  required  in  these  pleas 727,  728 

The  rent,  how  payable;  must  be  certain 729 

The  terms  of  the  lease 730 

The  usual  plea  to  replevin  of  a  distress 731 

Form  of  avowry  or  cognizance 732 

Pleas  to  an  avowry  or  cognizance 733 

Plea  of  set  off  to  an  avowry 734 

Pleas  to  an  avowry ;  averments  in 735 

Plea  to  cognizance;  denying  authority  of  bailiff 736 

Plea  of  "  non  tenure  "  or  "  nothing  in  arrear  " 737 

Same  rules  apply  to  cognizance 738 

Effect  of  replevin  on  la  idlord's  lien 739 

CHAPTER  XXIY. 

THE   VERDICT   AND   JUDGMENT. 

Tlie  verdict 740 

Court  may  correct  form,  but   cannot  change   the   sub- 
stance  741,  742 

The  jury  must  pass  on  all  questions  at  issue 743 

May  find  for  both  parties 744 

Each  party  may  submit  necessary  issues  to  the  jury 745 


CONTENTS.  XXIX 

BECTTON. 

"  Not  guilty,"  wliat  responsive  to 746 

Statutory  exceptions 747 

In  justice  courts 748 

Illustrations  of  the  exactness  required  in  the  verdict. 749,  750 

Finding  need  not  be  in  express  words 751,  752 

The  verdict  maj'  be  general  if  it  cover  all  the  issues.  .753,  754 

Verdict  should  not  amalgamate  different  issues 755 

Separate  defendants  may  have  separate  verdicts 756 

Verdict  must  be  certain 757,  758 

Must  be  consistent 759 

Value  of  property,  when  must  be  found 760 

Value  of  separate  articles 761 

Conditional  verdict 762 

Value  where  the  party's  interest  is  limited 763 

Verdict  for  damages,  when  essential 764,  765 

The  judgment 766 

Should  embrace  all  parties  and  all  issues 767,  768 

Must  be  certain 769 

Judgment  upon  default 770 

When  property  has  been  delivered,  plaintiff  cannot  have 

value 771 

Judgment  for  value,  or  delivery 772 

Judgment  in  the  alternative  for  the  goods,  or  their  value.  773 

Exceptions  to  this  rule 774 

Judgment   for    both   parties   for   different   parts  of  the 

goods 775 

Separate  judgment  as  to  separate  defendants 776 

Order  for  delivery  part  of  the  judgment 777 

Defendant  is  entitled  to  reasonable  time  to  comply  with 

the  judgment  for  return 778 

Effect  of  payment  of  judgment  for  value 779,  780 

Judgment  of  non-suit  does  not  affect  title 781 

Judgment  of  dismissal 782 

Illustrations  of  the  effect  of  judgment 783 

Judgment  for  value  of  limited  interest 784 

Judgment  for  value  on  count  in  trover 785 

"When  property  is  lost,  judgment  for  return  immaterial, .  786 
Judgment  for  value  in  such  cases 787 


XXX  CX)NTENTS. 

CHAPTER  XXY. 

MISCELLANEOUS. 

BECTIOS 

Contesting  creditors  cannot  invoke  the  aid  of  the  insol- 
vent laws  against  each  other 788 

ISTor  set  up  a  forfeiture  under  usury  laws 789 

Eifflit  to  beofin  and  conclude 790 

Trial  upon  the  facts  existing  when  the  suit  began 791 

Date  of  writ  not  conclusive  as  to  coranieucement  of  the 

suit 792 

All  matters  in  dispute  should  be  settled  in  the  replevin 

suit 793 

Defense  by  bailee 794 

Effect  of  a  submission  to  arbitration 795 

Plea  in  abatement,  another  suit  pending 796 

The  same.     To  the  affidavit 797 

Limitations 798 

Amendments 799 

Amendment  of  affidavit 800 

Death  of  party  to  suit 801 


TABLE  OF  CASES  CITED. 


KKFERENCES  ARE  TO  PAGES, 


PAGES. 

Abbott  V.  Barry,  2  Brod.  &  Bing. 

(6  E.  C.  L.)  369,  182 

Abrams  v.  Jones,  et  al.,  4  Wis. 

806,  165 

Acker  v.  Campbell,  23  "Wend. 

373,  183,  183,  207,  208 

Acker  v.  Finn,  5  Hill,  293,  220 

Acker  v.  White,  25  Wend.  614, 

261,  263,  264,  401 
Ackerman  t).  King,  29  Tex.  291,  254 
Ackley  v.  Finch,  7  Cow.  290,  121 
Ackworth  v.  Kempe,  Douglas, 

40,  11,  146,  168 

Adams  v.  Adams,  13  Pick.  385, 

5,  400 
Adams  v.  Broughton,  Andrews, 

18,  419 

Adams  v.  Champion,  31  Mich. 

233,  416 

Adams  v.  Corriston,  7  Minn.  456, 

55,  366,  367 
Adams  v.  Hubbard,  30  Mich. 

104,  147,  172 

Adams  v.  Smith,  5  Cow.  280,  192 
Adams  v.  Wildes,  107  Mass.  123,  109 
Addison  v.  Overend,  6  Term.  R. 

357,  706,  90,  418 

Aireton  v.  Davis,  9  Bing.  740,  326 
Alden  v.  Carver,  13  Iowa,  253, 

65, 198,  209 


FAQES. 

Aldridge  v.  Harper,   10  Bing. 

118,  241,  251 

Alexander  v.  Burnham,  18  Wis. 

199,  164 

Alexander  v.  Southey,  5  Barn.  & 

Aid.  247,  83,  216 

Alford  V.  Bradeen,  1  Nev.  228,  89 
Allaire  v.  Whitney,  1  Hill,  484,  291 
Allen  V.  Agnew,  4  Zab.  (N.  J.) 

443.  392 

Allen  V.  Crary,  10  Wend.  349, 

32,  33,  36,  37,  82,  146,  161,  205 
Allen  V.  Darby,  1  Show.  97, 

272,  274,  276,  277 
Allen  V.  Dykers,  3  Hill,  593,  30% 
Allen  V.  Fox,  51  N.  Y.  562,     35,  236 

260,  268, 288,  292,  295,  319,  321,  330 
Allen  V.  Judson,  71  N.  T.  77, 

226,  289,  321 
Allen  V.  Staples,  6  Gray,  (Mass.) 

491,  138,  143 

Allen  and  Wife  v.  White,  Admr., 

16  Ala.  181,  347 

Allison  V.  Chandler,  11  Mich. 

543,  292,  294 

Allison  V.  Matthieu,  3  Johns. 

235,  182,  184 

Allred  v.  Bray,  41  Mo.  484,  313 

Alwood  V.  Ruckman,  21  111.  200, 

90,  367 


(xxxi) 


xxxu 


TABLE   OF    CASES    CITED. 


PAGES. 

Alsayer  v.  Close,  10  Mees.  &  W. 

576,  305 

Am.  Ex.  Co.  V.  Parsons,  44  111. 

313,  305 

Ames  V.  Miss.  Boom  Co.,  8  Minn. 

407,  26,  77,  95,  113,  117 

Amoiy  V.  Flyn,  10  Johns.  103,       41 
Amos  V.  Sinnolt,  4  Scam.  440, 

196,  372,  388,  384 
Anderson  v.  Dunn,  19  Ark.  650,  376 
Anderson  v.  Foster,  2  Bailey,  (S. 

C.)  501,  232 

Anderson  v.  Hapler,  34  111.  436, 

10,  48,  51,  357 
Anderson  v.  Lane,  32  Ind.  102, 

102,  410 
Anderson     v.    O'Laughlin,     1 

Blake,  (Mont.)  81,  274 

Anderson  v.  Passman,  7  C.  »& 

Payne,  193,  8  B.  «fe  Aid.  703,       83 
Anderson  v.  Reynolds,  14  S.  & 

R.  439,  400 

Anderson  v.  Talcott,   1    Gilm. 

365,  272,  380,  384 

Anderson  v.  Tyson,  6  S.  &  M. 

(Miss.)  244,  417 

Andrew  v.  Dietrich,  14  "Wend.  31,  182 
Andrews  v.  Durant,  18  N.  Y. 

49G,  296 

Andrews  v.  Shattuck,  32  Barb. 

397,  210,  212 

Angell  V.  Keith,  24  Vt.  371.      33,  81 
Acigier  v.  Ash,  6-  Fost.  (N.  H.) 

99,  169 

Anon.  3  Atk..  237,  20,  25 

Anon.  Dyer,  141  a.  13 

Anon.  Dyer,  188  b.  15 

Anon.  Dyer,  280  b.  5,  283 

Anon..  4  Hill,  603,  428 

Anon.,  4  How.  (N.  Y.  Pr.)  290,    361 
Anon.,  Loftus,  520,  13 

Anon..  2  Mod.  199.  13 

Anon.,  6  M(.d.  103,  272 

Anon.,  Popham,  38,  118 

Anon..  Winch.  26,  8 

Anstice  v.  Holmes,  3  Denio,  244, 

270,  355,  380 


PAGES. 

Appleton  V.  Barrett,  23  Wis.  568, 

60,  406 
Appleton  V.  Barrett,  29  Wis.  221, 

213,  214 
Applewhite  v.  Allen,  8  Humph. 

(Tcnn.)  696.  b61,  428 

Archer  v.  Hale,  4  Bing.  (13  E, 

C.  L.)  464,  420 

Archer  v.  Williams,  2  Car.  &  K. 

(61  E.  C.  L.)  26.  303 

Archibald  v.  Thomas,  3  Cowen, 

284,  238 

Arendale  v.  Morgan,  5   Sneed, 

(Tenn.)703,  174,  190 

Armory  v.  Delamire,  1  Str.  505, 

67,  69 
Armstrong  v.  Burrell,  12  Wend. 

302,  222,  225.  253 

Armstrong  v.  Percy,  5  Wend. 

535,  313 

Arnold  v.  Allen,  8  Mass.  147, 

331,  243,  247 
Arter  v.  The  People,  etc.,  54  111. 

228.  231,  244 

Arundel  v.  Trevill,  1  Sid.  81,  41 

Arundel  v.  Trevin,  1  Keble,  279,  427 
Asbell  V.  Tipton,  1  B.  Mon.  (Ky ) 

300,  398 

Ash  V.  Putnam,  1  Hill,  302, 

182,  184,  190 
Ashby  V.  West  3,  Porter,  (Ind.) 

170,  383 

Ashmun  ^.Williams,  8  Pick.  403, 

43,  49 
Atherton  v.  Fowler,  46  Cal.  323, 

295,  296 
Atkin  V.  Barwick,  1  Stra.  165,  184 
Atkins  V.  Moore,  82  111.  240,  322 
Atkinson  v.  Holcomb,  4  Cow.  45,  366 
Atlantic,  etc.,  R.  R.  v.  Cleino,  2 

Dillon,  175.  130 

Auld  V.  Kimberlin.  7  Kan  601, 

355,  361 
Aulick  V.  Adams,  12  B.  Mon. 

104,  220 

Austen  v.  Howard,  7  Taunt,  327,  228 
Austin  V.  Craven,  4  Taunt.  644,     117 


TABLE   OF   CASES    CITED. 


XXXIU 


PAGES. 

Austin's  Exrs.  v.  Jones,  1  Va. 

(Gilrn.)  341,  328,  329 

Austin  C.Wilson,  4  Cusli.  (Mass.) 

273.  338 

Axford  V.  Perrett,  4  Bing.  586, 

232,  245 
Ayer  v.  Bartlett,  9  Pick.  156,  325 
Ayers  v.  Hewett,  19  Me.  281, 

181,  188,  197 
Azel  V.  Betz,  2  E.  D.  Smitli,  188,    87 


B. 

Babb  V.  Talcott,  47  Mo.  343,  39,  344 
Babcock  v.  Gill,  10  Jolins.  287, 

116,  118 
Babcock  v.  Trice,  18  111.  420,  344 
Baclie  V.  Proctor,  Doug.  (Eng.) 

367,  244 

Backenstoss  v.  Stabler,  33  Pa. 

St.  251,  295 

Bacon  v.  Cropsey,  3  Seld.  195,  162 
Bacon  v.  Davis,  30  Mich.  157, 

21,  41 
Badger  v.  Pbinney,  15  Mass.  359, 

21,  27,  34,  186,  211,  385 
Badlam  v.  Tucker,  1  Pick.  284, 

139,  225,  233,  234 
Baer  v.  Martin,  2  Carter,  (Ind.) 

229,  78 

Bagnall  v.  Ableman,  4  Wis.  163,  162 
Bailey  v.  Burton,  8  Wend.  339,  122 
Bailey  v.  Ellis,  21  Ark.  488.  370 

Bailey  v.  Shaw,  4  Foster,  (N.  H.) 

297,  304 

Bailey  v.  Troxell,  43  Ind.  433  365 
Bain  v.  Clark,  10  Johns.  424,  397 
Baker  «.  Drake,  53  N.  Y.  211, 

292,  294,  304,  312 
Baker  v.  Drake,  66  N.  Y.  518, 

301,  304 
Baker  v.  Dubois,  32  Mich.  92, 

355,  358,  361 
Baker  v.  Fales,  16,  Mass.  147, 

22,  41,  385 
Baker  v.  Howell,  6  S.  &  R.  (Pa.) 
476,  46,  51 


Baker  v.  Philips,  4  Johns.  190,  17 
Baker  v.  Washington,  et  al.,  5 

Stewart  &  P.  (Ala.)  142,  347 

Baker  v.  Wheeler,  8  Wend.  505, 

309,  117,  337 
Baldwin  v.  Cash,  7  Watts.  &  S. 

(Pa.)  425,  24,  83 

Baldwin  v.  Cole,  6  Mod.   212, 

197,  200 
Bales  V.  Scoft,  26  Ind.  203,  370,  415 
Ballou  V.  O'Brien,  20  Mich.  304, 

180,  197 
Balsley  v.  Hoffman,  13  Pa.  St. 

603,  232.  234,  239,  250 
Baltimore  Ins.  Co.  v.  Dalryraple, 

25  Md.  269,  298 

Bancroft  v.  Blizzard,  13  Ohio,  30,  209 
Banks  v.  Whetstone,  Moore,  394,  99 
Barber  v.  The  Bank,  9  Conn.  407,  147 
Barbour  v.  White,  37  111.  164, 

350,  413 
Barker  v.  Green,  2  Bing.  317,  326 
Barker  v.  Miller,  6  Johns.  199,  375 
Barker  v.  Stacy,  25  Miss.  471, 

123,  178 
Barksdale  v.  Appleberry,  23  Mo. 

389,  22,  289,  329 

Barnes  v.  Bartlett,  15  Pick.  71, 

86,  292,  295,  300 
Barnes  v.  Martin,  15  Wis.  240,  139 
Barnes  v.  Tannehill,  1  Blackf. 

604.  74,  302,  369 
Barnett  v.  Selling,  70  JST.Y.  492, 

41.  78 
Barnett  v.  Thompson,  37  Ga.  335,  301 
Barney  v.  Douglass,  22  Wis.  464, 

320,  R24 
Barr  v.  Hughes,  44  Pa.  St.  516,  398 
Barrett  v.  Hall,  1  Mason,  447,  411 
Barrett  v.  Scrimshaw,   Combe. 

477,  59 

Barrett  v.  Turner,  2  Neb.  172. 

60,  103,  106 
Barrett  t). Warren,  3  Hill,  (N.  Y.) 

348,  34,  35,  182, 200,  385 

Barron  v.  Coblcigh,  11  N.  H. 
557,  110 


XXXIV 


TABLE   OF    CASES   CITED. 


PAGES. 

Barry  v.  O'Brien,  103  Mass,  521. 

59,  274,  287 
Barry  v.  Rogers,  2  Bibb.  (Ky.) 

314,  88 

Barry  v.  Sinclair,  Pliill.  (N.  C. 

L.)  7,  225,  227 

BartlettB.Brickett,  14  Allen,  62, 

295,  348 
Bartlett    v.    Kidder,   14  Gray, 

(Mass.)  449,  268,  279,  327 

Bassett  v.  Armstrong,  6  Mich. 

397,  59 

Bateinan  v.  Goodyear,  12  Conn. 

575,  294 

Bates  V.  Buchanan,  2  Bush.  (Ky.) 

117,  290,  297,  411 

Bates  V.  Conkling,  10  Wend.  390,  197 
Bates  V.  Nellis,  5  Hill,  (N.  Y.) 

651,  393,  394 

Bates  V.  Stanton,  1  Duer,  (N.  Y.) 

79,  179 

Bates  V.  "Wilbur,  10  Wis.  415, 

122,  414 
Battis  V.  Hamlin,  22  Wis.  669, 

148,  169,  225,  322,  326 
Bayless  v.  Lefaivre,  37  Mo.  119, 

67,  69,  73,  204,  369 
Beach   v.    Botsford,    1    Doug. 

(Mich.)  206.  147,  172 

Beach  v.  Derby,  19  111.  617,  98,  122 
Beach  v.  Schmultz,  20  HI.  185,  111 
Beals  V.  Guernsey,  8  Johns.  446,  295 
Beans.  Hubbard,  4  Gush. (Mass.) 

85,  139, 150 

Beaumont  v.  Greathead,  (2  M. 

G.  &  S.)  52,  E.  C.  L.  494,  291 

Beazley  v.  Mitchell,  9  Ala.  780, 

66,  174 
Beebe  v.  De  Baun,  3  Eng.  (Ark.) 

510,  32 

Beech  v.  Fulton  Bank,  7  Cow. 

(N.  Y.)  485,  348 

Beecher  v.  Derby  Bridge  Co., 

24  Conn.  491,  315 

Beemis  v.  Wylie,  19  Wis,  318, 

404,  414 
Beers  v.  St.  John,  16  Conn.  322,    43 


PAGES. 

Beers  v.  Wuerpul,  24  Ark.  273, 

138,  145 
Becker  v.  Dupree,  75  111.  167,  340 
Beckwith  v.  Philleo,   15  Wis. 

223,  60,  66,  414 

Belcher  v.  Van  Duzen,  37  111. 

281,  87 

Belden  v.  Laing,  8  Mich.  500, 

65,  145,  424,  4]6 
Belkin  v.  Hill,  53  Mo.  493.  26 

Belknap  v.  Wendell,  1  Fost.  (N. 

H.)  175,  424 

Bell  V.  Bartlett,  7  N.  H.  178, 

22,  144,  286 
Bell  V.  Bell,  20  Geo.  250,  298 

Bell  V.  Cunningham, 3  Peters,  69,  293 
Bell  V.  Farrar,  41  111.  400,  103 

B  11  V.  Hogan,  1  Stewart,  (Ala.) 

536,  88 

Bell  V.  Monahan,  Dudley,  (S.  C.) 

38,  66 

Bell  V.  Pharr,  7  Ala.  807,  329 

Bell  V.  Thomas,  8  Ala.  527,  227 

Belt  V.  Worth ingtnn,  3  Gill.  «& 

J.  (Md.)  247,        225,  238,  248,  254 
Bemus     V.  Beekman,  3  Wend. 

667,       270,  290,  384,  403,  405.  406 
Benjamin  v.  Stremple,    13  111. 

466,  322 

Benje   v.   Creagh's  Admr.,    21 

Ala.  151,  23,  30 

Bennett  v.  Allen,  30  Vt.  684, 

26,  231 
Bennett  v.  Berry,  8  Blackf.  1,  15 
Bennett  v.  Ives,  30  Conn.  329,  82 
Bennett  v.  Lockwood,  20  Wend. 

223,  312,  315,  341 

Bent  V.  Bent.  44  Vt.  633,        80,  201 
Bergesch  v.  Keevil,  19  Mo.  127, 

64,  361,  428 
Berghoff  v.  Heckwolf,  26  Mo. 

511,  233,  233,  267,  270,  286 

Bern  v.  Mattaire,  Cases  T.  H. 

219,  97 

Bernal  v.  Hovious,  17  Cal.  542,      93 
Berrien  v.  Westervelt,  12  Wend. 

194,  356,  858 


TABLE   OF   CASES   CITED. 


XXXV 


PAGES. 

Berry  v.  Dwinel,  44  Me.  267,  309 
Berry  v.  Hofiner,  56  Me.  171  268, 
Beriy  v.  Vantries,  12  S.  &  R.  89,  295 
Berthold  c.  Fox,  13  Minn.  501, 

292,  299,  329 
Bethea  v.  McLennon,  1  Ired.  (N. 

C.)  523,  32,  329 

Bethlehem    Borough  v.   Perse- 
verance Fire  Co.,  81  Pa.  St. 

445,  28 

Bettis  V.  Taylor,  8  Port.  (Ala.) 

564,  329 

Belts  V.  Lee,  5  Johns.  348, 

117,  118,  119 
Beveridge  v.  Welch,  7  Wis.  465, 

324,  343 
Beyer    v.     Fenstermacher,     2 

Whart.  (Pa.)  95,  399 

Bigelow  V.  Comegys,  5  Ohio  St. 

256,  242 

Bigelow  V.  Doolittle,  36  Wis. 

115,  295 

Bilbo  V.  Henderson,  21  Iowa,  56, 

124,  129,  133 
Bills  V.  Kinson,  1  Fost.  (21  N. 

H.)  448,  139,  143 

Bills  v.  Vose,  7  Fost.  (N.  H.) 

212,  424 

Binsted    v.   Buck,  W.  Blacks, 

1117,  204 

Birchard  v.  Booth,  4  Wis.  67,  338 
Biscoe  V.  McElween,  43  Miss. 

556,  337 

Bissel  V.  Drake,  19  Johns.  66, 

41,  101 
Bissell  V.  Hopkins,  4  Cow.  53,  295 
Black  V.  Winterstein,  6   Neb. 

225,  292 

Blacket  v.  Cressop,  1  Lutw.  688,  234 
Blackie  v.  Cooney,  8  Nev.  41,  296 
Blackwell  v.  Acton,  38  Ind.  425, 

315,  316,  414 
Blackwell  v.  Hunt,  Noy,  107,  11 
Blanche©.  Bradford,  38  Pa.  St. 

344,  398 

Blaney  v.  Bearce,  3  Me.  133,  57 

Bliss  V.  Badger  36  Yt.  338  39 


PAGES. 

Bliss  V.  Whitney,  9  Allen,  114,  45 
Bloomer  v.  Juhel,  8  Wend.  448,  401 
Blot  V.  Boiceau,  3  Comst.  78,  303 
Bloxam  v.  Hubbard,  5  East.  407,  207 
Blystone  v.  Burgett,  10  Ind  28, 

123,  178 
Bodley  ©.  Reynolds,  8  Q.B.  779,  311 
Bofil  v.  Russ,  3  Stobh.  (S.  C.)  98,  23 
Bogan  V.  Stoutenburgh,  7  Ohio, 

part  2,  133  202 

Bogard  v.    Jones,    9    Humph. 

(Tenn.)  738  36,  67,  68 

Bogert  ©.  Burkhalter,  3  Barb. 

525,  312 

Bogert  V.  Phelps,  14  Wis.  88,  163 
Boies  V.  Witherell,  7  Me.  162,  378 
Boise  V.  Knox.  10  Met.  40,  66,  197 
Bolander  v.  Gentry,  36  Cal.  105, 

65,  146,  381 
Boley  V.  Griswold,  20  Wall.  486, 

279,  415,  421 
Bond  V.  Mitchell,  3  Barb.  304, 

365,  367 
Bond  V.  Padelford,  13  Mass.  394, 

69,  369 
Bond  V.  Ward,  7  Mass.  123, 

197,  209 
Bonesteel  v.  Orvis,  22  Wis.  522, 

292,  295,  313,  321 
Bonner  v,  Coleman,  3  B.  Mon. 

464,  270,  286,  290 

Bonsall  t.  Comly,  44  Pa.  St. 

443,  151 

Boody  t.  Keating,  4  Gr.  (IVIe.) 

164,  175 

Booth  V.  Ableman,  16  Wis.  460, 

81,  156,  274 
Booth  X.  Ableman,  18  Wis.  495,  156 
Booth  V.  Ableman,  20  Wis.  21, 

603,       156,  284,  296,  321,  322,  413 
Borron    x.  Landes,    1    Duvall, 

(Ky.)  399,  397 

Bosley  v.  Farquar,  3  Blackf.  66,  166 
Bosseker  v.  Cramer,  18  Ind.  44,  405 
Bostick  v.  Brittain,  25  Ark.  482,  87 
Boston  &  W.  R.  R.  v.  Dana,  1 

Gray,  83,  175 


XXXVl 


TABLE   OF   CASES    CITED. 


PAGES. 

Boswell  V.  Green,  1  Dutch  (25 

N.  J.  L.)  390,  38 

Boughton  V.   Bruce,  20  Wend. 

234,  197,  209 

Bourk  V.  Riggs,  38  111.  320, 

269,  270,  272,  284,  405 
Bowen  v.  Fenner,  40  Barb.  383, 

61,  206 
Bowen  v.  Hutchings,  18  Conn. 

550,  25,  81 

Bowen  v.  Schuler,  41  111.  192, 

182,  184 
Bower  v.  Higbee,  9  Mo.  259,  46,  48 
Bower  c.  Tall  man,  5  W.&  S.  (Pa.) 

556,     24,  40,  84,  167,  331,  333.  419 
Bowmaker  v.  Moore,    1    Exch. 

R,  355,  251,  426 

Bowman  v  Eaton,  24  Barb.  528,  210 
Bowser  v.  Scott,  8  Blackf.  86,  393 
Boyd  V.  McAdams.  IQ  111.  146,  373 
Boyer  v.  Fowler,  1  Wash.  Terr. 

119,  237 

Boynton  v.  Page,  13  Wend.  425, 

91,  405 
Brackenbury  v.  Pell,   12  East. 

585,  232 

Brackett  v.  Bullard,  12  Met.  309,  123 
Bradley  c.  Gamelle,  7  Minn.  331, 

77,  83 
Bradley  v.   Holloway,  28  Mo. 

150,  146 

Bradley   v.   Michael,    1    Cart. 

(Ind.)  551,  59,  66,  105 

Bradshaw  v.  Warner,  54  Ind.  58,  193 
Bradyll  v.  Ball,  1  Bro.  Ch.  C. 

428,  260,  264 

Branch  v.  Branch,  5  Fla.  447,  267 
Branch  v.  Branch,  6  Fla.  315, 

228,  231,  258,  347,  357 
Branch  v.  Wiseman,  51  Ind.  1, 

60,  93,  171,  268,  271 
Brannin  v.  Johnson,  19  Me.  361, 

294,  313,  343 
Bransconibe  v.   Scarbrough,   6 

Adol.  &  E.  (N.  8.)  13,  239 

Bratton  v.  Clawson,  2  Strobh. 

(S.  C.)  478,  55 


PAGES. 

Brearley  v.  Cox,  4  Zab.  (24  N. 

J.)  287,  45 

Brent  v.  Hagner,  5  Cratich.  C.  C. 

71,  42 

Brewer  v.  Fleming,  51  Pa.  St. 

102,  52 

Brewer  v.  Strong's  Exrs.,  10  Ala. 

961,  348 

Brewster  v.  Baker,  16  Barb.  613,     85 
Brice  v.  Elliot,  8  Legal  News, 

322,  126 

Bridges  v.  Hawkesworth,  (31  L. 

J.  Q.  B.  75 )  7  E.  L.  &  E.  424,    70 
Bridges  v.  Layman,  31  Ind.  384, 

171,  356,  3G0 
Briggs  V.  Dorr,  19  Johns.  95,  404 
Briggs  V.  Gleason,  29  Vt.  78, 

31,  283 
Briggs  V.  Large,  30  Pa  St.  287.  392 
Bringhurst  v.  Pollard,  6  Porter, 

(Ind.)  452,  125,  129 

Bristol  V.  Burt,  7  Johns.  254, 

112,  200 
Bristol  V.  Wilsmore,  1  Barn.  & 

Cress.  514,  182,  184,  190 

Britt  V.   Aylett,  6  Eng.   (Ark.) 

475.  66 

Brizsee  v.  Maybee,  21  Wend.  144, 

292,296.308,314,337,  341 
Broadwater  v.   Darne,  10   Mo. 

277,  24,68,  285 

Brockway  v.  Burnap,  12  Barb. 

347,  32.  83,  368 

Brockway  v.  Burnap,  16  Barb. 

309,  36,  83,  368 

Brockway  v.  Burnap,  8  How.  Pr. 

188,  77 

Brockway  v.  Kinney,  2  Johns. 

210,  407 

Bronson  &  Mitchell,  In  re.,  12 

Johns.  460,  356 

Brooke  v.  Berry,  1  Gill.  (Md.) 

153,  22,  24 

Brookover  v.  Esterly,  12  Kan. 

149,  121 

Broom  V.  Fox,  2  Yeates,  (Pa.) 

530,  267 


TABLE    OF   CASES    CITED. 


XXI VI 1 


PAGES. 

Brown  o.  Allen,  35  Iowa,  306,  339 
Brown  v.  Bemeut,  8  Johns.  96, 

121,  132 
Brown  v.  Bissett,  1  Zab.  (21  N.  J.) 

46,  163,  396 

Brown  v.  Bissett,  1  Zab.  (31  N.  J. 

L.)  267,  146,  380 

Brown  v.  Caldwell,  10  S.  &  R. 

(Pa.)  114,  43,  46,  51,  54 

Brown  v.  Campsall,  6  Har.  &  J. 

(Md.)  491,  177 

Brown  v.  Chickapee  Falls  Co., 

16  Conn.  87.  66 

Brown  v.  Compton,  8  Term  R. 

231, 434,  161 

Brown  v.  Cook,  9  Johns.  361,  197 
Brown  v.  Crockett,  32  Me.  537,  75 
Brown  v.  Cummiugs,  7  Allen, 

507,  313 

Brown  v.  Davis,  9  N.  H.  76,  169 

Brown  v.  Emerson,  18  Mo.  103,  293 
Brown  v.  Holmes,  13  Kan.  483, 

98,  198,  209,  367 
Brown  v.  Jarvis,  1  Mees.  &  W. 

704,  167 

Brown  v.  Johnson,  45  Cal.  76, 

279,  330,  431 
Brown  v.  Parker,  5  Blackf.  391, 

333,  333.  338 
Brown  v.  Sax,  7  Cow.  95, 

95,  116,  118 
Brown  v.  Smith,  1  N.  H.  36, 

24,  73,  284,  355,  404,  417 
Brown  v.  Stanford,  22  Ark.  76, 

270,  276 
Brown  v.  Wallis,  115  Mass  156, 

41,  45 
Brown  v.  Webster,  4  N.  H.  500. 

273,  378 
Browne  v.  Powell,  4  Bing.  230,  393 
Brownell   v.   Carnley,  3  Duer, 

(N.  Y.)  9.  73 

Brownell  v.  Manchester,  1  Pick. 

233,  24,  69,  139,  351,  369 

Browning®.  Bancroft,  8  Met.  278,  182 
Browning  ».  Hanford,  5  Denio, 

536,  76,  166,  169 


PAass. 

Bruce  v.  Learned,  4  Mass.  614. 

294,  338 
Bruce  v.  "Westervelt,  3   E    D. 

Smith,  440,  39,  62 

Bruen  v.  Ogden,  6  Halst.  (N.  J.) 

370,  33,  39,  160 

Brundage  v.  Camp,  21  111.  330, 

189,  190 
Bruner  v.  Dyball,  42  111.  34, 

197,  200,  359,  361,  401 
Brush  V.  Fowler,  36  111.  59,  150 

Brusley  v.  Hamilton,  15  Pick. 

40,  64 

Bryan  v.  Smith,  22  Ala.  534,  66 

Buchenau    v.    Horney,    13    111. 

336,  188 

Buck  V.  Colbath,  7  Minn.  310,  154 
Back  V.  Colbath,  3  Wall.  (U.  S.) 

334,  146.  158,  160,  169,  209 

Buck  V.  Lewis,  9  Minn,  314, 

244,  249 
Buckley  v.  Buckley,  9  Nev.  373, 

21,  98,  111,  138,  250 
Buckley   v.   Buckley,   12  Nev. 

423,  23,  41.  79,  277,  284,  413 

Buckmaster  v.  Beames,  4  Gilra. 

(111.;  443,  249 

Buell  V  Ball,  20  Iowa,  282,  125,  134 
Buell  V.  Schaale,  39  Iowa,  293,  126 
Buffington  v.  Gerrish,  15  Mass. 

156,  185,  207 

Bugle  V.  Myers,  59  Ind.  73,  223 

Ball  V.  Griswold,  19  111.  631, 

48,  119,  309,  336 
BuUis  V.  Montgomery,  50  N.  Y. 

352,  149 

Burbank  v.  Crooker,  7  Gray,  158,  193 
Burdett  v.  Hunt,  35  Me.  419,  98 

Burdick  v.  McVanner,  3  Denio, 

171,  33,  133 

Burhans  v.  Tibbits,  7  How.  Pr. 

R.  21,  74,  403 

Burkle  v.  Luce,  (1  Comst.)  1  N. 

Y.  163.  239,  234,  237,  255, 

261,  263,  429 
Burkle  v.  Euce,  6  Hill,  558, 

234,  259,  260,  261,  401,  429 


XXXVIU 


TABLE    OF    CASES    CITED. 


PAGES. 

Burket  v.  Boude,  3  Dana,  209,  391 
Burns  v.  Cooper,  31  Pa.  St.  426,  90 
Burns  v.   Robbins,   1   Code  R. 

(N.  Y.)  63,  164 

Burr  V.  Daugherty,  21  Ark.  559, 

24,  32,  96,  197 
Barrage  v.  Melson,  48  Miss.  237, 

312,  364 
Burrall  v.  Vanderbilt,   1    Bos. 

637,  241 

Burrows  v.  Stoddard,  3  Conn. 

160,  76 

Burt  V.  Dutcher,  34  N.  Y.  493,  301 
Burton   v.    Brashear,  3  A.   K. 

Marsh.  (Ky.)  276,  78,  83 

Burton  v.  Curyea.  40  111.  320, 

181,  189,  190 
Burton  v.  Hough,  6  Mod.  334,  61 
Burton  v.  Tannehill,  6  Blackf. 

470,  60 

Burton   «.    Wilkinson,  18   Vt. 

186,  164 

Bush  V.  Lyon,  9  Cow.  (N.  Y.)  52, 

66,  72 
Busick  v.  Bumm,  3  Iowa,  63,  355 
Bussey  v.  Page,  14  Me.  132,  55 

Bussing  v.  Rice,  2  Cush.  48, 

197,  207.  208 
Buster  v.  Newkirk,  20  .lohns.  75,  41 
Butcher  v.  Green,  Doug.  (Eng.) 

652,  285 

Butcher  v.  Porter,  1  Salk.  93, 

272,  273,  384 
Butcher  d.  Porter,  1  Show,  400, 

234,  272 
Butler  V.  Collins,  12  Cal.  457, 

182,  313 
Butler  V.  Mehrling,  15  111.  488,  313 
Butler  v.  Miller,  1  Comst.  496,  121 
Butler  V.  Wigge.  1  Saund.  65,  244 
Butterfield  v.  Hemsley,  12  Gray, 

220,  230 

Butters  v.  Haughwout,  42  111.  18, 

189,  190,  212 
Butts  B.  Collins,  13  Wend.  139,      75 
Byrd  v.  O'Hanlin,  1  Mill,  (S.  C. 
Const.)  401,  25 


C. 

PAGES. 

Cable  V.  Dakin,  20  Wend.  172,  337 
Cady  V.  Eggleston,  11  Mass.  283, 

223,  244 
Cahoon  v.  Bank  of  Utica,  3  Seld. 

(N.  Y.)  486,  418 

Caldwell  t>.  Arnold,  8  Minn.  265, 

146,  156,  165,  167 
Caldwell    v.   Bartlett,   3  Duer, 

341,  183,  191 

Caldwell     v.     Bruggerman,    4 

Minn.  270,  411.  410 

Caldwell    v.    Cleadon,    3   liar. 

(Del.)  430,  397 

Caldwell  «.   Cowan,  9  Yerger, 

(Teun.)  363,  62 

Caldwell  v.  Fenwick,  3  Dana, 

(Ky.)  333,  79,  90,  838,  329 

Caldwell     v.    Gans,    1    Blake, 

(Mont.)  570,  237,  354 

Caldwell  v.  West,  1  Zab.  (21  N. 

J.)  411,  29,  219,  355,  395,  359 

Camp  V.  Root,  18  Johns.  2  J,  436 

Campbell  v.  Head,  13  111.  133, 

139,  300,  3f)3 
Campbell  v.  Jones,  38  Cal.  507, 

370,  410 
Campbell  e.Quinl an,  3  Scam.  288,  383 
Campbell  v.  Williams,  39  Iowa, 

640.  60,  65,  141 

Campbell    v.   Wood  worth,    30 

Barb.  648,  313 

Cannon  v.  Folsom,  2  Iowa,  101,  303 
Cannon  v.  Kinney,  3  Scam.  9,  66 
Cardinal  v.  Smith,  Deady  C.  C. 

197,  132 

Carey  v.  Bright,  58  Pa.  St.  70.  338 
Carlisle  v.  Burley,  3   Gr.  (Me.) 

250,  347 

Carlisle  D.Weston,  1  Met.  (Mass.) 
,.   26,  33 

Carlton     v.    Davis,     8    Allen, 

(Mass,)  94,  95.  413 

Carothers  «.  Van  Hagan,  2  Q. 

Greene,  (Iowa,)  481,  40^',  -i  18 

Carpenter    v.    Hale,    8    Gray, 
(Mass.)  157,  S50 


TABLE   OF    CASES    CITED. 


XXXIX 


PAGES. 

Carpenter  v.  Stevens,  13  Wend. 

589,  252.  280,  328,  422 

Carrel  v.  Early,  4  Bibb.  265, 

250,  3-:8,  329,  425 
Carrico  v.  Taylor,  3  Dana,  (Ky.) 

33,  235 

Carroll  v.  Harris.  19  Ark.  287,     384 
Carroll   v.   Pathkiller,   3    Port. 

(Ala.)  279,  36,  319 

Carrutli  v.  Grassle,  11  Gray,  211,     99 
Carson  v.  Applegartb,  6  Nev. 

187,  409,  411 

Carswell  v.  Ware,  30  Geo.  267,      100 
Carter  v.  Streator,  4  Jones,  (N. 

C.  L.)  62,  305 
Carter  v.  Willard,  19  Pick.  1,  107 
Cartland  v.  Morrison,  32  Me. 

190,  350 

Carty  v.  Fenstemaker,  14  Ohio 

St.  457,  122 

Cary  v.  Hewitt,  26  Mich.  228, 

31,  259,  434 
Cary  v.  Hotailing,  1  Hill,  311,  182 
Case  V.  Pettee,  5  Gray,  27.  231 

Cash  V.  Quenichett,  5  Heisk.  737.  229 
Cass  V.  N.  Y.  &  N.  H.  R  R.,  1  E. 

D.  Smith,  522,  215.  340,  350 
Cassell  V.  Western,  etc.,  Co.,  13 

Iowa,  47,  59,  365,  424 

Cate  V.  Cate,  44  K  H.  211,  143 

Catterliu  v.  Mitcliell,  27  Ind.  298,  355 
Chadwick  v.  Badger,  9   N.  H. 

450,  231 

Chadwick  v.  Miller,  6  Iowa,  34, 

25,  26,  274 
Chaffee  v.  Sangston,  10  Walts, 

265,  232 

Chambers  v.  Hunt,  18  N.  J.  L. 

339,  89,  346,  372,  376,  380 

Chambers  t).Hunt,  2  Zab.  (22  N. 

J.)  552,  88,  376,  379,  380 

Chambers  v.  Waters,  7  Cal.  390, 

239,  270 
Champion  v.  Vincent,  20  Tex. 

811,  291,  294 

Chandler  v.  Allison,  10  Mich. 

461,  314,  342 


PAGES. 

Chandler  v.  Edson,  9  Johns.  362,  117 
Chandler  v.  Lincoln.  52  111.  74, 

92,  271,  380,  384,  386 
Chapman  v.  Andrews,  8  Wend. 

240.  31 

Chapman  v.  Kirby,  49  111.  211,    313 
Cliarleston  v.  Price,  1  McCord, 

(S.  C.)  290,  25 

Chase  v.  Allen,  5  Allen,  599,        374 
Chatterton  v.  Saul,  16  111.  149, 

41,  43 
Chenyworth  v.  Daily,  7  Porter, 

(Ind.)  284,  209 

Chicago  &  Alton  R.  R.  v.  Dal  by, 

19  111.  353,  348 

Chicago  Dock  Co.  v.  Foster,  48 

111.  507,  191 

Chicago  &  IST.  W.  Ry.  Co.  v.  Pea- 
cock, 48  111.  253,  348 
Chicago  &  S.  W.  Ry.  Co.  v.  N. 

W.  Packet  Co.,  38  Iowa,  377.    370 
Chickering  v.  Raymond,  15  111. 

3G2,  41 

Child  V.  Child,  13  Wis.  17, 

28,  32,  61,  273,  321,  404 
Childs  V.  Hart,  7  Barb.  370, 

364,  366.  367 
Chiles  V.  Drake,  2   Met.   (Ky.) 

146,  339 

Chinn  v.  McCoy,  19  111.  604,        249 
Chinn  v.  Russell,  2  Blackf.  (Ind.) 

172,       23,  29,  32,  60,  139,  147,  209 
Chissom  v.  Hawkins,   11   Ind. 

316,  79,  90,  96 

Chissom  v.  Lamcool,  9  Ind.  530,  415 
Christian   County  v.   Overholt, 

18  III.  223,  341 

Church    V.   De  Wolf,   2    Root, 

(Conn.)  282,  413 

Cirencester,   The  Abbot  of,   v. 

Thomas,  Y.  B.  30  E.  I.  18,  15 

City  of  Bath  v.  Miller,  53  Me. 

308,  267,  269 

City  of  Chicago  v.  Martin,  49 

111.  241,  293 

City  of  Ft.  Dodge  v.  Moore,  37 

Iowa,  388,  98 


xl 


TABLE    OF    CASES   CITED. 


PAGES. 

Claflin  V.  Thayer,  13  Gray,  459. 

229,  230 
Claggett  V.  Richards,  45  N.  H. 

360,  227,  228 

Clark  V.  Adair,   3   liar.   (Del.) 

116,  274 

Clark  V.  Bales,  15  Ark.  452,  418 

Clark  V.  Conn.  Riv.  R.  R.,  6  Gray, 

363,  231 

Clark  V.  Griffith,  24  N.  Y.,  595, 

92.  105 
Clark  V.  Heck,  17  Ind.  (Har.) 

281,  60,  408 

Clark  V.  Keith,  9  Ohio,  72, 

12,  285,  407,  417 
Clark  V.  Lewis,  35  111.  417,  136,  197 
Clark  V.  Norton,  6  Minn.  412, 

75,  147,  231,  235,  239,  268 
Clark  V.  Pinney,  7  Cow.  681,  321 
Clark  V.  Reyburn,  1  Kan.  281,  56 
Clark  V.  Skinner,  20  John.  (N. 

Y.)  465,  23,  27,  30,  66,  139,  351 
Clark  V.  Warner,  32  Iowa,  219,  418 
Clark  V.  West,  23  Mich.  242, 

85,  145,  424 
Clarke  v.  Bell,  2  Litt.  (Ky.)  164,  230 
Clarke  v.  Shee,  1  Cowp.  R.  197,  99 
Clary  v.  Rolland,  24  Cal.  147, 

237,  238,  415 
Clap  v.  Guild,  8  Mass.  153, 

223,  251,  252,  311 
Clapp  V.  Shepard,  2  Metcalf,  127, 

41,  349 
Clapp  V.  Walters,  2  Tex.  130,  319 
Clay  V.  Caperton,  1  T.  B.  Mon. 

10,  172 

Cleaves  v.  Herbert,  61  111.  126, 

61,  121,  365 
Clement  v.  Wright,  40  Pa.  St. 

251,  50 

Clements  v.  Flight,  16  Ex.  42,  83 
Clements  v.  Glass,  23  Geo.  395,  319 
Clinton  v.   Kin^,   3   How.   Pr. 

Rep.  55,  164 

Cloud  V.  Moorman,  18  Ind.  40,  104 
Coan  V.  Bowles,  Carth.  122,  12 

Coan  V.  Bowles,  1  Show.  165,       396 


PARES. 

Cobb  V.  Curts,  4  Litt.  Rep.  235.  228 
Cobb  V.  Dows,  10  N.  Y.  335,  189 
Cobb  V.  Megrath,  36  Geo.  625, 

60,  65,  66 
Coburn  v.  Harvy,  18  Wis.  147,  392 
Cochran  iJ.Winburn,  13  Tex.  143,  331 
Cocks  V.  Nash,  9  Bing.  341,  250 
Coddington  v.  Bay,  20  Johns. 

637,  191 

Coe  «.  Peacock,  14  Ohio  St.  187,  325 
Coffin  V.  Field,  7  Cush.  355,  32 

Coffin  V.  Gephart,  18  Iowa,  256,  78 
Coffin  V.  Knott,  2  Greene,  (Iowa.) 

582,  32 

Coghiil  V.  Boring,  15  Cal.  213, 

182,  187,  188,  350 
Coghiil  V.  Hartford,  3  Gray,  545,  193 
Coit  V.  Waples,  1  Minn.  134, 

270,  364,  367,  384,  403 
Cole  V.  Conolly,  16  Ala.  271, 

22,  168,  323,  381 
Cole  V.  Tucker,  6  Tex.  266,  337 

Colgrave  v.  Dias  Santos,  2  B.  «& 

C.  76,  213 

Colman  v.  Wade,  2  Seld.  (N.  Y.) 

44,  241,  251 

Coles  V.  Hulme,  8  B.  &  0.  (15  E. 

C.  L.)  568,  244 

Collamer©.  Page,  35  Vt.  387, 

26,  278,  287,  413 
Collins  V.  Evans,  15  Pick.  63, 

62.  275,  276 
Collins  V.  Hough,  26  Mo.  149, 

25,  239,  276,  286 
Collman  v.  Collins,  2  Hall,  (N. 

Y.)  569,  180 

Collomb  V.  Taylor,  9  Humph. 

(Tenn.)  689,  36 

Colt  V.  Eves,  12  Conn.  243,  162,  167 
Colton  V.  Mott,  15  Wend.  619,  88 
Colwell  V.  Brower,  75  111.  516,  113 
Colwill  V.  Reeve,  2  Campb.  575,  109 
Commercial   Bank,   Buftalo,  v. 

Kortright,  22  Wend.  348;  20 

Wend.  91,  302,  342 

Commonwealth  v.  Kennard,  8 

Pick.  133,  150 


TABLE   OF   CASES   CITED. 


xli 


PAGES. 

Commonwealth    v.    Morse.    14 

Mass.  217,  352 

Commonwealth      v.      Rees,     3 

Whart.  124,  231 

Conrad  v.  Pacific  Ins.  Co.,  6  Pet. 

(U.  S.)  262,  294 

Congre.i^ational  Society  v.  Flem- 
ing, 11  Iowa,  533,  45 
Connah  v.  Hale.  23  Wend.  463, 

197,  215 
Conner  v.  Comstock,  17  Ind.  90, 

196,  207,  270,  276 
Conner  v.  Henderson,  15  Mass. 

320,  188 

Conner  v.  Palmer,  13  Met.  302,     142 
Constantine  v.  Foster,  57  111.  36, 

272,  377,  380 
Conyers  v.  Ennis,  2  Mason,  236,  187 
Cook  V.  Ellis,  6  Hill,  466,  338 

Cook  V.  Howard,  13  Johns.  276,     67 
Cook  V.  Lothrop,  18  Me.  260, 

236,  237 
Cook  V.  Staats,  18  Barb.  407,  356 
Cooley  V.  Davis,  34  Iowa,  128, 

22,  138 
Coombs  V.  Gordon,  59  Me.  Ill,  147 
Cooper  V.  Brown,  7  Dana,  (Ky.) 

333,  233,  235,  270 

Cooper  V.  Newman,  45  N.  H. 

389,  207 

Cooper  V.  Peck,  22  Ala.  406,         235 
Cope  V.   Romeyne,  4  McLean, 

U.  S.  C.  C.)  384,  55 

Copland  v.   Bosquet,  4  Wash. 

(U.  S.  C.  C.)  588,  193 

Copeland  v.  Majors,  9  Kan.  104,  415 
Coply  V.  Rose,  2  Comst.  115,  36 

Corbett  v.  Lewis,  53  Pa.  St.  323, 

91,  346 
Corbitt  V.  Heisey,  15  Iowa,  296, 

28,  63,  375.  379 
Core's  Case,  Dyer,  22  5,  41,  99 

Cornell  o.  Cook,  7  Cow.  (N.  Y.) 

310,  169 

Cortelyou  v.  Lansing,  2  Caine's 

Ca.,  200,  301 

Cory  V.  Silcox,  6  Ind.  39  291 


PAGES. 

Coryton  v.  Lithebye,  2  Saund. 

112,  88 

Cotter  V.  Doty,  5  Ohio,  393,  144 

Cotton  V.  Marsh,  3  Wis.  221,  168 
Cotton  V.  Watkins,  6  Wis.  629, 

121,  123 
County  of  Christians.  Overholt, 

18  111.  223,  314 

Courtis  V.  Cane,  32  Vt.  233, 

174,  176.  197,  199,  205,  207 
Coverlee  v.  Warner,  19  Ohio,  29,  36 
Covin  V.  Hill,  4  Denio.  323, 

178,  189 
Cowden  v.  Pease,  10  Wend.  334,  23G 
Cowdin  0.   Stanton,   12  Wend. 

120,  235,  236 

Cox  V.  Grace,  5  Eng.  (Ark )  86, 

355,  356,  358,  363 
Cox  V.  Hardin,  4  East.  211,  62 

Cox  V.  Morrow,  14  Ark.  603,  34,  38 
Craft  V.  Franks,  34  Iowa,  504, 

257,  258 
Cranz  v.  Kroger,  22  111.  74,  21 2 

Cravath  v.  Plympton,  13  Mass. 

454,  347 

Crawford  t;.  Morris,  5  Gratt.  90,  418 
Creamer    v.    Ford,    1     Heisk. 

(Tenn.)  307,  26,  223,  248 

Creel  v.  Kirkham,  47  111.  344,  28 
Creighton  v.  Newton,  5  Neb.  100,  284 
Crenshaw  o.  Moore.  10  Geo.  384,  66 
Cresson  v.  Stout,  17  Johns.  116, 

41,  46,  51,  67 
Crist  V.  Parks,  19  Tex.  234,  357,  428 
Crites  v.  Littleton,  23  Iowa,  205,  245 
Crittenden  v.  Lingle,  14  Ohio  St. 

182,  147 

Crocker  v.  Mann,  3  Mo.  472, 

32,  59,  393 
Crockett  v.  Grain,  33  N.  H.  543,  93 
Crofoot   V.    Bennett,  2  Comst. 

(N.  Y.)  358,  103 

Cromwell  v.  Owings,  7  Har,  & 

J.  (Md.)  55,  139 

Cronly  v.  Brown,  13  Wend.  271,  369 
Crosby  v.  Baker,  6  Allen,  (Mass.) 

295,  150 


xlii 


TABLE    OF    CASES    CITED. 


Crosby  v.  Leng,  12  East.  409.        175 

Crosse  v.  Bilson,  2  Ld.  Kaym. 
1016,  37G,  377 

Crosse  v.  Bilson.   6  Mod.  102, 

277,  284,  890 

Cullum  V.  Bevans,  6  Har.  &  J. 
(Md.)  469.  22,  29.  90,  376 

Cully  V.  Spearman,  2  H.  Bla. 
386,  395 

Cumberlaud  Coal  &  Iron  Co.  v. 
Tilghman,  13  Md.  74,  22 

Cummiogs  v.  Gaun,  52  Pa.  St. 
484,  71,  204,  222,  229 

Cummings  v.  Mac  Gill,  2  Mur- 
phy, (N.  0.)  357,  23 

Cummings  v.  Stewart,  42  Cal. 
230,  349,  416 

Cummings  v.  Tindall,  4  Stew- 
art &  P.  (Ala.)  357,  347 

Cummings  v.  Vorce,  3  Hill,  282, 

32,  37,  1 97,  199,  209,  356 

Currier  v.  Ford,  26  111,  488.  424 

Curtis  V.  Groat,   6  Johns.  168, 

116.  117,  118 

Curtis  V.  Jones,  3  Denio,  (N.  Y.) 
590,  72,  400 

Cushenden  v.  Harman,  2  Tyler, 
(Vt.)  431,  235,  248 

Gushing  v.  Longfellow,  26  Me. 
306,  298,  307.  308,  336 

Cutler  V.  Rathbone,  1  Hill,  204. 

356,  427 


D. 


Daggett  V.   Robins,    2   Blackf. 

415,  14, 19,  23  29,  32,  38,  273,  420 
Dahler  v.  Steele,  1  Blake,  (Mont.) 

206.  274 

Dai  ley  v.  Dismal  Swamp,  2  Ired. 

(N.  C.)  222,  333 

Dalgleish  v.  Grandy,  Cam.  &  N. 

(N.  C.)  22,  391 

Dame  v.  Baldwin,  8  Mass.  518,  175 
Dame  v.  Dame,  43  N.  H.  37,  31,  60 
Dame  v.  Fales,  3  N.  H.  70,  161 


375 

209 


PAGE3. 

Damron  v.  Roach,  4  Humph. 

(Tenn.)  134,  311 

Dana  «.  Bryant,  1  Gilm.  104,  404 
Dana  v.  Fiedler,  2  Kern,  (N.  Y.) 

40,  296.  309 

Daniels  v.  Ball.   11   Wend.  59 

note,  67 

Daniels  v.  Brown,  34  N.  11.  454, 

87,90 
Daniels  v.  Patterson.  3  Comst. 

47,  232.  255 

Daniels  v.  Pond,  21  Pick.  367,  48 
Dannels  v.  Fitch,  8  Pa.  St.  495.  186 
Darling  «.  Tegler,  30  Mich.  54,  209 
Dar|  v  Horn,  20  111.  212, 

363,  409,  421 
Darter  v.  Brown,  48  Ind.  395, 
Daumiel  v.  Gorham,  6  Cal.  43. 
Davenport  v.  Ledger,  80  111.  574, 

313,  337 
David  V.  Bradley,  79  111.  316,  321 
Davidson  v.  Gunsolly,  1  Mich. 

388,  322 

Davidson   v.  Waldron,   31    111. 

120,  65,  68,  158 

Davies  v.  Richardson's  Exrs.,  1 

Bay,  (S.  C.)  102,  298 

Davis  V.  Crow,  7  Blackf.  129, 

248,  316 
Davis  V.  Easley,  13  111.  192, 

51,  95,  116 
Davis  V.  Harding,  3  Allen,  302, 

235,  238,  248,  275 
Davis  V.  Loftin,  6  Tex.  489,  67,  69 
Davis  V.  Oswell,  7  C.  &  P.  804, 

312,  314 
Davis  V.  Taylor,  41  111.  405,  43 

Davison  v.  Gill,  1  East.  64,  161 

Dawson  v.  Cropp,  1  Man.  G.  & 

S.  961,  394 

Dawson  v.  Wetherbee,  2  Allen, 

461,  274,  275,  279,  287 

Day  V.  Wood  worth,    13    How. 

363,  316 

Dayton  v.  Fry,  29  111.  525,  75,  172 
Deacon  v.  Powers,  57  Ind.  489, 

89,  351 


TABLE   OF   CASES   CITED. 


xliii 


PAGES. 

Dearborn  v.  Kelley,  3    Allen, 

426,  223,  230 

Deardorff  v.  Ulmer,  34  Ind.  353, 

222,  224,  226,  359 
Dearraon  v.  Blackburn,  1  Sneed. 

(Tenn.)  390.  141,  145 

Decker  v.  Anderson,  39   Barb. 

347,  243,  248 

Decker  v.  Judson,  16  N.  Y.  439, 

244,  249 
Decker  v.  Livingston,  15  Johns. 

479,  88,  394,  395,  397 

De  Forrest  v.  Luts,  16  Johns.  122,  364 
DelancL-y  v.  Holcomb,  26  Iowa, 

94,  197 

Delaware  R.  R.  v.  Prettj^man,  7 

Int.  Rev.  Rec.  101,  126 

Demick  v.  Chapman,  11  Johns. 

132,  67 

De  Mott  V.  Ilagerman,  8  Cow. 

219,  51,  88 

Dennis  v.  Barber,  6  S.  &  R.  (Pa.) 

420,  292 

Dennis  v.  Crittenden,  (3  Hand.) 

42  N.  Y.  542,  359 

Denny  v.  Reynolds,  24  Ind.  248,  248 
Derby  c  Gallup,  5  Minn.  119,  295 
Deshon  v.   Bigelow,    8    Gray, 

(Mass.)  159,  189,  193 

Detroit  Daily  Post  Co.  v.  McAr- 

thur,  16  Mich.  447,  339,  340 

Devendorf  «.  Wert,  42  Barb.  227,  291 
Dewey  v.  Bowman,  8  Cal.  145,  122 
Dewiut  V.  Wiltsie,  9  Wend.  326, 

312,  313 
De  Witt  V.  Morris,  13  Wend.  495, 

101,  162,  257,  292 
Deyo  V.  Jeunison,  10  Allen,  410,  139 
Dezell  V.  Odell,  3  Hill,  215, 

75,  76,  170,  171 
Dias  V.  Freeman,  5  T.  R.  104, 195, 

233,  246 
Dibble  v.  Morris,  26  Conn.  416,  315 
Dickinson  v.  Boyle,  17  Pick.  78,  312 
Dickinson  v.  Lovell,  35  N.  H.  9,  380 
Dickinson  v.   Noland,   3  Eng. 

(Ark.)  25,  277,  287,  363 


PAGES. 

Dickson  v.  Mathers,  Hempst.  0. 

C.  65,  23,  60 

Dillenback  v.  Jerome,  7   Cow. 

294,  352,  369 

Dillingham  v.   Smith,  30  Me. 

370,  109.  383 

Dillon  V.  Wright,  4  J.  J.  Marsh, 

(Ky.)  254,  171 

Dilworth  v.  McKelvy,  30  Mo. 

149,  322,  326 

Dimond  v.  Downing,  2  Wis.  498, 

78,  388 
Ditson  V.  Randall,  33  Me.  203,  190 
Dix  V.  Van  Wyck,  2  Hill,  (N.  Y.) 

522,  39,  173 

Dixon  V.  Hancock,  4  Cush.  96, 

65,  103 
Dixon  V.  Niccolls,  39  111.  372,  90 
Dixon  V.  Thatcher,  14  Ai-k.  141, 

62,  66,  68,  87,  374 
Doak  V.  The  Exrs.  of  Snapp,  1 

Cold.  (Tenn.)  180,  309 

Dodd  V.  McCraw,  8  Ark.  83,  76 

Dodge  V.  Brown,  23  Mich.  446, 

95,  109 
Doe  V.  Martyr,  4  Bos.  &  Pull. 

332,  177 

Dole  V.  Kennedy,  38  111.  282, 

382,  405 
Dominick  v.  Backer,  3  Barb.  17,  163 
Donaldson  «.  Johnson,  3  Chand. 

(Wis.)  160,  403,  410 

Donohoe  v.  McAleer,  37  Mo.  312,  260 
Doogan  v.  Tyson,  6  Gill.  &  J. 

(jMd.)  453,  225,  233,  238,  250 

Dooley  v.  Crist,  25  111.  551,  43 

Dorsey  v.  Gassaway,  2  Har.  &  J. 

(Md.)  403,  286,  393,  319,  338 

Dorsey  v.  Maulove,  14  Cal.  553, 

292,  337,  343 
Doty  V.  Gorham,  5  Pick.  487,  43 
Doty  V.  Hawkins,  6  N.  H.  247,  207 
Douch  V.  Rahner,  61  Ind.  64,  150 
Douglass  V.  Douglass,  31  Wall. 

98.  236 

Douglass  «.  Gardner,  63  Me.  463, 

81,  223 


xliv 


TABLE   OF   CASES   CITED. 


PA0E8. 

Douglass  V.  Garrett,  5  "Wis.  85, 

270,  290,  ;^.84,  385 
Douglass  V.  Kraft,  9  Cal.  562, 

301,  309 
Douty  V.  Bird,  60  Pa.  St.  48,  342 
Dow  V.  Rattle,  12  111.  373,  413 

Dow  V.  Sudbury,  5  Met.  73,  132 

Dowell  V.  Richardson,  10  Ind. 

573,  96,  129,  404,  410 

Dows  ■».  Bignall,  Laylor's  Suplt. 

(Hill  &  Denio,)  407,  41,  99 

Dows  V.  Greene,  32  Barb.  490,  68 
Dows  V.  Rush,  28  Barb.  157,  293 
Dozier  v.  Joyce,  8  Porter,  (Ala.) 

303,  273,  378,  379 

Drake  B.Wakefield,  11  How.  Pr. 

Rep.  107,  83 

Drane  v.  Hilzheim,  13  S.  &  M. 

(Miss.)  337,  411.  417 

Draper  v.  Ellis,  12  Iowa,  316.  367 
Draycot  v.  Plot,  Cro.  Eliz.  818,  99 
Driscoll  V.  Place,  44  Vt.  252,  161 
Drummond  v.  Hopper,  4  Har. 

(Del.)  327.  33,  178 

Dubois  V.  Glaub,  52  Pa.  St  238, 

309,  342 
Dubois  V.  Harcourt,  20  Wend.  41,  66 
Dubois  V.  Kelley.  10  Barb.  496,  42 
Dudley  v.  Hawley,  40  Barb.  397,  177 
Dudley  v.  Ross,  27  Wis.  679, 

30, 132,  133 
Duffy  V.  Merrill,  9  Ired.  (N.  C.) 

46,  23 

Dufresne     «.     Hutchinson,     3 

Taunt.  117,  181 

Dugan  V.  England,  Harper,  (8. 

C.)  214,  232 

Dunbar  v.  Bittle,  7  Wis.  143,  403 
Duncan  v.  Spear,  11  Wend.  54, 

67,  273,  378,  379 
Dunham  v.  Troy  Union  R.  R. 

Co.,  3  Keyes,  543,  83 

Dunham  v.  Wyckotf,  3  Wend. 

280,  32.  59,  141,  368 

Dunkin  v.  McKee,  23  Ind.  447,  75 
Dunlap  V.   Hunting,  2  Denio, 

643,  75 


PAGES 

Durell  V.  Haley,  1  Paige,  492, 

191,  192 
Durfee  v.  Jones,  11  R.  I.  588,  70 
Durst  V.  Burton,  47  N.  Y.  167, 

303,  309 
Dwight  V.  Brewster,  1  Pick.  50,  201 
Dwight  V.  Enos,  5  Seld.  (N.  Y.) 

470,  415,  418 

D'Wolf  V.  Harris,  4  Mason  C. 

C.  515,        88,  89,  90,  349,  358,  384 
Dyer  «.  Pearson,  (3  B.  &  C.)  10 

E.  C.  L.  38,  177 

Dynes  v.  Hoover,  20  How.  (U. 

S.)  65,  161 


K 


Eakin  v.  Eakin,  63  III.  160, 

86,  87,  88 
Earl  V.  Camp,  16  Wend.  552, 

75,  147,  151,  162 
Earl  V.  Tapper,  45  Vt.  275, 

815,  316 
Eisly  V.  Boyd,  12  Ala.  684,  348 

East  Boston  Co.  v.  Persons,  2 

Hill,  126,  427 

East   India  Co.  v.   Hensley,  1 

Esp.  112  179 

Easton  v.  Worthington,  5  S.  & 

R.  (Pa.)  130.  272,  297,  415 

Eaton  V.  Caldwell,  3  Minn.  134,  403 
Eaton  V.  Monroe,  52,  Me.  63,  193 
Eaton  V.  Southby.  Willes,  131, 

24,  30,  40 
Eddy  V.  Beal,  34  Ind.  159, 

357,  358,  362,  428 
Eddy  V.  Davis,  35  Vt.  247,  41 

Edelen  v.  Thompson,  2  Har.  & 

G.  (Md.)  32  373,  404,  411 

Edgerly  v.  Emerson,  3  Fost.  (23 

K  H.)  555,  97 

Edmonds  v.  Groves,  2  Mees.  & 

W.  642,  383,  386 

Edmunds  v.  Leavitt,  27  N.  H. 

198,  381 

Edwards  «.   McCurdy,  13  111. 

490,  377 


TABLE   OF    CASES   CITED. 


xlv 


PAGES. 

Eggleston    v.    Mundy,    4    Mich. 

295,  76,  122 

Eisendralh  v.    Knauer,  64  111. 

396,  66,  71,  72 

Ela  V.  Shepard,  32  N.  H.  277,  162 
Eldred  v.  Bennett,  38  Pa.  St.  183,  246 
Eldred  v.  The  Oconto  Co.,  30 

Wis.  206;  33  Wis.  133, 

38,  113,  199,  364,  408 
Eldridge  v.   Adams,   54  Barb. 

417,  25,  80,  202,  203 

Elliott  V.  Black.  45  Mo.  372, 

45,  167,  233 
Elliott  V.  Powell,  10  Watts.  (Pa.) 

453,  51,  52 

Elliott  V.  Whitmore,  5   Mich. 

532,  150 

Ellis  V.  Culver,  1  Har.  (Del.)  76, 

86,  409 
Ellis'  Admr.  v.  Culver.  2  Har. 

(Del.)  129,  23 

Ellis  V.  Lersner,  48  Barb,  539, 

36,  79,  83 
Ellsworth    V.    Henshall,  4    G. 

Greene,  (Iowa,)  417,  100 

Ely  V.  Ehle,  3  Comst.   (N.  Y.) 

506,     32,  35,  60,  205,  270,  368,  385 
Emerson  v.  Bleakley,  2  Abb. 

Dec.  22  430 

Emmons  v.  Dowe,  2  Wis.  322, 

66,  388,  406 
English  v.  Dalbrow,   1   Miles, 

(Pa.)  160,  2a,  37,  81 

Erie  Savings  Bank  v.  Roop.  48 

N.  Y.  292,  85 

Erlinger  v.  The  People,  36  111. 

458,  232 

Eslava  v.  Dillihunt,  46  Ala.  698, 

411,  415,  416 
Esson  V.  Tarbell,  9  Gush.  407,  78 
Etter  V.  Edwards,  4  Watts.  (Pa.) 

63,  204,  284 

Evans  v.  Brandcr,  2  H.  Bla.  547. 

5,  12,  17,  164 
Evans  v.  King,  7  Mo.  411, 

237,  255,  264 
Evans  v.  Parker,  20  Wend.  622,  169 


PAGES. 

Eveleth  v.  Blossom.  54  Me.  447,    82 
Everett  v.  Coffin,  6  Wend.  603, 

72,  206 
Everit  v.  Walworth  Co.  Bank, 

13  Wis.  419,  410,  411 

Ewing  V.  Blount,  20  Ala.  694,       289 
Evving  V.  Vanarsdall,  1  Serg.  & 

R.  (Pa.)  370,  397 

E.C  parte  Chamberlain,  1  Scho. 

&  Lef.  320  note,  7 

Ex  p'lrte  Johnson,  7  Cow.  424,     248 
Ex  parte  Wadde  Tliompson,  15 

Am.  L.  Reg.  525,  341 

Ex  parte  Wright.  6  Cow.  399,       426 


F. 


Fagen  «.  Davison,  2  Duer.  153,    312 
Paget  V.  Brayton,  2  Har.  &  J. 

(Md.)  350  284,  367,  370,  413 

Fahnestock  v.   Gilhara,  77  111. 

637,  43,  45,  225,  228 

Fairbanks  v.  Phelps,  22  Pick. 

535,  59,  65 

Fairbank  v.  Witter,  18  Wis.  287,  316 
Fairman  v.  Fluck,  5  Watts.  (Pa.) 

516,  343,  399 

Fallon  V.  Manning,  35  Mo.  271, 

286,  322,  326 
Fant  v.  Wilson,  3  Mon.   (Ky.) 

342,  228,  248 

Farley  v.  Lincoln,  51  N.  H.  577, 

185,  189,  192,  194,  207 
Farmers'  Loan  &  Trust  Co.  v. 

Com.  Bank,  15  Wis.  424,  411,  416 
Farnham  v.  Moor,  21  Me.  508, 

325,  326 
Farrar  ».  ChaufFetete,  5  Denio, 

527,  206 

Farrington  v.  Payne,  15  Johns. 

432,  197 

Farrow  i).  Orear,  2  Duvall.  (Ky.) 

261.  247 

Farwell  v.  Fox,  18  Mich.  169, 

95,  96,  97 
Farwell  v.  Warren,  51  111.  467,    338 


xlvi 


TABLE   OF    CASES    CITED. 


PAGES. 

Faulkner  v.  Brown,  13  Wend.  63,  323 
Faulkner  v.  Meyers,  6  Neb.  415,  407 
Fawcett  v.  Osborn,  33  111.  411,  176 
F;iy  V.  Parker,  53  N.  H.  Rep. 

343,  338 

Fayette  Ins.  Co.  v.  Rogers,  80 

Barb.  491,  348 

Feagiu  v.  Pearson,  43  Ala.  333,  329 
Fearn  v.  Filica,  7  M.  &  G.  513,  383 
Federhea    v.    Smith,   3   Allen, 

(Mass.)  119,  366,  435 

Fenn  v  Harrison.  3  D.  &  E.  754,  179 
Feuner  v.  Kirkman,  26  Ala.  650  210 
Ferguson    v.   Moore,   3  Wash. 

(Va.)  54,  393 

Ferguson  v.  Thomas,  26  Me.  499,  133 
Fernald  v.  Chase,  37  Me.  389. 

197,  301 
Fernald  v.  Linscott,  6  Me.  234, 

55,  56 
Ferrell  v.  Humphrey,  13  Ohio, 

113,  386 

Fettyplace  v.   Dutch,  13   Pick. 

388,  107 

Fidler  v.  Delavan,  30  Wend.  57,  366 
Fidlerc.  McKinley,  21  III.  308,  393 
Field  V.  Post,  9  Vroom,  (N.  J.) 

346,  298 

Fifth  National  Bank,  Chicago, 

V.  Bayley,  115  Mass.  339,  107 

Finehout  v.  Crain,  4  Hill,  537, 

257,  378 
Finley  v.  Quirk,  9  Minn.  194,  370 
First  National  Bank  v.  Crocker, 

111  Mass.  163,  106 

First  National  Bank  v.  Crow- 
ley, 34  Mich.  493,  104,  336 
Firth  V.  Purvis,  5  T.  Rep.  337, 

433,  393 

Fisher  v.  WhooUery,  25  Pa.  St. 

197,  24,  289 

Fister  v.  Beall,  1  Har.  &  J.  (Md.) 

31,  430 

Fitch  V.  Dunn,  3  Blackf.  (Ind.) 

143,  75,  171 

Fitch    V.    Newberry,   1   Doug. 

(Mich.)  1,  180,  209 


PAGES. 

Fitzer  v.  McCannan,  14  Wis.  63, 

410,  411 
Fitzhugh  V.  Wiman,   9   N.   Y. 

'559,  415,  418 

Fleet  V.  Lockwood,  17  Conn.  333, 

374,  378,  287 
Fletcher  v.  Wilkins.  6  East.  233,  24 
Florrance  v.  Goodin,  5  B.  Mon. 

(Ky.)lll,  237 

Florence  Sewing  Machine  Co. 

V.  Warford,  1  Sweeney,  (N.Y.) 

433,  174 

Fobes  V.  Shattuck,  23  Barb.  568, 

93,  111,  113 
Fonda  v.  Van  Home,  15  Wend. 

631,  35,  81,  205 

Fontleroy    v.    Aylnier,    1    Ld. 

Rayni.  239,  365 

Ford  V.  Caldwell,  3  Riley,  (S.  C.) 

277;    3  Hill,  and  new  ed.  3 

Hill,  *248,  83 

Ford  V.  Ford,  3  Wis.  309, 

74,271,403,404,  405 
Ford  ham  v.  Akers,  33  L.  J.  Q. 

B.  07,  14 

Forsyth  v.  Wells,  41  Pa.  St.  291, 

118,  334 
Fort  V.  Saunder,  5  Heisk.  (Tenn.) 

487,  307 

Fort  Dodge  v.  Moore,  37  Iowa, 

388,      ^  98 

Forth  V.  Pursley,  83  111.  153,    59,  63 
Forty  V.  Imber,  6  East.  334,  397 

Foshay  v.  Ferguson,  5  Hill,  (N. 

Y.)  154,  185,  197,  203 

Foss  V.  Stewart,  14  Me.  313,  139,  151 
Foster  v.  Chamberlain,  41  Ala. 

158,  439 

Foster  t).  Pettibone,  20  Barb.  350, 

144,  148 
Foster    v.    Tucker,    3     Green, 

(Me.)  458,  175 

Fouldes  V.  Willoughby,  8  M.  & 

W.  540,  203 

Fowler  «.  Down,  1  Bos.  &  Pull. 

44,  65,  68 

Fowler  v.  Hawkins.  17  Ind,  211,    90 


TABLE   OF   CASES    CITED. 


xlvii 


PAGES. 

Fowler  v.  Hoffman,  31  Mich. 

215,  268,  421 

Fowler  v.  Stoaum,  6  Tex.  60,  26 
Fox  V.  Hanbuiy,  Cowp.  445,  87 ' 

Fox  V.  Prickett,  5  Vroom,  (34  N. 

J.)  13,  38,  363 

Foy  V.  Reddick,  31  Ind.  414,  42,  49 
Fralick  v.  Presley,  29  Ala.  457.  319 
Franciscus  v.  Rcigart,  4  Watts. 

98,  397 

Fraser  v.  Davie,  5  Rich.  (S.  C.) 

Law,  59,  397 

Fraser  i;.  Little,  13  Mich.  195,  240 
Frazier  v.  Fredericks,  4  Zab.  (24 

N.  J.)  162,  24,  2-5,  297,  298 

Frazier  ».  Laughlin,  1  Gilm.  347, 

253,  403 
Freas  v.  Lake,  2  Col.  480,  407,  408 
Freeborn  v.  Norcross,  49  Cal.  313,  296 
Freeman  v.  Bluet,  12  Mod.  395,  8 
Freeman  «.' Carpenter,  10  Vt.  433,  99 
Freeman  v.  Davis,  7  Mass.  200,  223 
Freeman  v.  Howe,  24  How.  (U. 

S.)  450,  153,  154,  158,  160,  274 

Frei  v.  Vogel,  40  Mo.  149,  229,  323 
Freshwater  v.  Nichols,  7  Jones, 

(N.  C.)  251,  67 

Frey  v.  Drahos,  7  Neb.  194, 

284,  294,  322 
Frey  v.  Leeper,  2  Dall.  (Pa )  131, 

259,  260,  261 
Frierson  v.  Frierson,  21  Ala.  549,  88 
Frink».  Flanagan,  1  Gilm.  (111.) 

35,  357,  358,  428 

Frisbee  v.  Langworthy,  11  Wis. 

375,  122,  172 

Frost  V.  Mott,  34  N.  Y.  253,  151,  379 
Frothinghani  v.  McKusick,  11 

Shep.  (Me.)  403  55,  57 

Fryatt  v.  The   Sullivan  Co.,  5 

Hill,  (N.  Y.)  117,  43,  49,  181 

Fuller  0.  Chamberlain,  11  Met. 

(Mass.)  503,  418 

Fuller  v.  Paige,  26  HI.  358,  109 

Fuller  V.  Tabor,  39  Me.  519,  49,  201 
Fuilerton  v.   Miller,  22  Md.  5, 

231,  238 


PAOE3. 

Fulton  V.  Heaton,  1  Barb.  (N. 

Y.)  552,  163 

Fultz  0.  Wyckoff,  25  Ind.  331,      343 
Funk  V.  Israel,  5  Iowa,  438, 

138,  142,  418 
Furniss  v.  Hone,  8  Wend.  247,      187 


G. 


Gaff  V.  Harding,  48  111.  148,  79 

Gallagher  v.  Bishop,  15  Wis.  276, 

32,  81,  140,  269 
Gallarati  v.  Orser,  4  Bosw.  (N. 

Y.)  94,  415 

Galusha  v.  Butterfleld,  2  Scam. 

227,  384 

Galvin  v.  Bacon,  11  Me.  28, 

178,  179,  189,  207 
Gaines  v.  Harvin,  19  Ala.  491,  83 
Gaines  v.  Tibbs,  6  Dana,  (Ky.) 

143,  372,  373,  396 

Gano  V.  Hart,  Hardin,  (Ky.)  297,  395 
Gardner  v.  Bootbe,  31  Ala.  186,  197 
Gardner  v.  Campbell,  15  Johns. 

401,  30,  139,  141,  147 

Gardner  v.  Dutch,  9  Mass.  427, 

91,  114 
Gardner  v.  Heartt,  3  Denio,  233,  56 
Gardner  v.  Humphrey,  10  Johns. 

53.  366 

Gardner  v.  Lane,  9  Allen,  (Mass.) 

493,  100,  423 

Garlin  v.  Strickland,  37  Me.  443,  228 
Garrett  v.  Wood,  3  Kan.  231, 

299,  320,  329,  414 
Garth  v,  Howard,  5  Car.  &  P. 

346,  83,  84 

Gartside  v.  Nixon,  43  Mo.  138,  67 
Garvin  v.  Paul,  47  N.  H.  158,  93 
Gay  V.  Morgan,  4  Bush.  (Ky.) 

606,  '    '      244 

Gear  v.  Bullendick,  34  111.  74,  43 
Gentry  v.  Bargis,  6  Blackf.  261, 

171,  172,  377,  380 
Gerber  v.  Monie,  56  Barb.  653. 

33,  378,  379 


xlviii 


TABLE    OF   CASES   CITED. 


PAGES. 

German  Ins.  Co.  v.  Grim.  32  Ind. 

249,  251 

Gibbons  v.  Dillingham,  5  Eng, 

(Ark.)  9.  48 

Gibbsy.  Bartlett,  2  W.  &  S.  (Pa.) 

29,    232, 2  ;4,  236,  251,  275, 311,  328 
Gibbs  V.  Bull.  18  Johns.  435, 

219,  226 
Gibbs  D.  Chase,  10  Mass.  125,  32,  205 
Gibbs  V.  Jones,  46  111.  319,  176,  197 
Gibson  v.  Ireson,  43  E.  C.  L.  621,  394 
Gibson  v.  Jenny,  15  Mass.  205, 

139,  151 
Gibson  v.  Mnzier,  9  Mo.  258,  382 
Gibson  ■».  Stevens,  8  How.  (U. 

S.)  384,  107 

Gibson  v.  Stevens,  7  N.  H.  352,  98 
Gilbert  v.   Kennedy,  22   Mich. 

117,  292 

Gilbert  v.  Moody,  17  Wend.  354,  145 
Gilchrist    ■».   Moore,    7    Clark, 

(Iowa,)  9,  197,  206 

Giles  V.  Elsworth,  10  Md.  333,  394 
Gillerson  v.  Mansur,  45  Me.  25,  48 
Gillet  V.  Fairchild,  4  Denio,  81,  349 
Gillett  V.  Treganza,  6  Wis.  343,  60 
Gillham  v.  Kerone,  45  Mo.  487,  39 
Gillies  V.  Wofford,  26  Tex.  76, 

292,  370 
Gilman  v.  Hill,  36  N.  H.  311,  111 
Gilman  iJ.Williams  et  al.,  7  Wis. 

329,  156 

Gilmore  v.  Newton,  9  Allen,  171, 

197,  200,  201,  207 
Gilmore  v.  Wilbur,  12  Pick.  120,  88 
Gilson  V.  Wood,  20  111.  37,  299 

Gimble  v.  Ackley,  12  Iowa,  27, 

22,  146,  209,  260 
Gimson  v.  Woodfull,  2  C.  &  P. 

41,  176 

Ginaca  v.  Atwood,  8  Cal.  446, 

280,  333 
Gisbourne  v.  Hurst,  1  Salk.  249,  394 
Glann  v.  Younglove,  27  Barb. 

480,  331,  415 

Glascock  V.  Nave,  15  Har.  (Ind.) 

457,  172 


PAOES. 

Globe   Works   v.  Wright,    106 

Mass.  207,  201,  346 

Glover  v.  Chase,  27  Vt.  533,  25,  26 
Glover  v.  Hunnewell,  6  Pick. 

222,  88 

Godfrey  v.  Bull  in,  Yelv.  180,  396 
Goff  V.  Kilts,  15  Wend.  550,  41 

Goff  V.  O'Conner,  16  111.421,  43,  55 
Golder  v.  Ogden,  15  Pa.  St.  528, 

75,  104 
Goldsmith  v.  Bryant,  26  Wis.  34,  213 
Golightly  V.  Reynolds,  Lotft.  88,  119 
GoU  V.  Hinton,  8  Abb.  Pr.  120,  93 
Goodheart  v.  Bowen,  2  Bi  adw. 

578,  139.  263,  269 

Goodman  v.  Aylin,  Yelv.  148,  396 
Goodman  v.  Church,  20  Vt.  187,  327 
Goodman  v.  Floyd,  2  Humph. 

(Tenn.)  58.  331 

Goodrich  v.  Fritz,  4  Ark.  525, 

138,  173 
Goodrich  v.  Jones,  2  Hill,  142,  45 
Goodtitle  v.  Bailey,  2  Cowp.  597,  238 
Gordon  v.  Harper,  7  Durnf.  & 

East.  6,  10,  59.  63 

Gordon  v.  Hostetter,  37  N.Y.  99, 

97, 175 
Gordon  v.  Jenney,  16  Mass.  465, 

109,  168,  242,  260,  265,  294 
Gordon  v.  Williamson,  20  N.  J. 

L.  77,  225,  297 

Gore  V.  Jenness,  19  Me.  53, 

55,  56,  57 
Gorton  v.  Falkner,  4  Durnf.  & 

E.  565,  84,  394 

Gotloff  «.  Henry,  14  111.  384, 

373,  375,  377, 380.  410 
Grace  v.  Mitchell,  31  Wis.  533, 

32,  34,  36,  78,  80,  163 
Graff  V.  Shannon,  7  Iowa,  508,  41 
Graham  v.  Roder,  5  Tex.  141,  337 
Grant  v.   Booth,   21   How.   Pr. 

Rep.  354,  164 

Graves  v.  Shoefelt,  60  111.  402, 

231,  243 
Graves  v.  Sittig,  5  Wis.  219, 

223,  284,  286,  296,  306,  324 


TABLE   OF    CASES   CITED. 


xHx 


PAGES. 

Graves  v.  Ticknor,  6  N.  H.  537,  213 
Gray  v.  Griffith,  10  Watts.  (Pa.) 

431,  28 

Gray  v.  Holdship,  17  S.  &  R  413,  55 
Gray  v.  Jones,  1  Head.  (Tenn.) 

542,  310 

Gray  v.  Nations,  1  Ark.  557, 

24,  32,  286,  385 
Gray  v.  Parker,  38  Mo.  160, 

67,  95,  116, 119 
Gray  v.  Rawson,  11  111.  527,  392 

Gray  v.  St.  John,  35  111.  222,  182, 188 
Groan er  v.  Mullen,  15  Pa.  St. 

200,  186 

Great  Western  Ry.  Co.  v.  Mc- 

Comas,  33  111.  185,  64,  74 

Greely  v.  Currier,  39  Me.  516, 

221,  228,  278 
Green  v.  Barker,  14  Conn.  431,  234 
Green  v.  Dingley,  24  Me.  131,  384 
Green  v.  Dunn,  4  Comb.  215,  214 
Green  v.  Holden,  35  Vt.  315,  141 
Green  v.  Humphrey,  50  Pa.  St. 

212,  184 

Green  v.  Patchin,  13  Wend.  293,  426 
Green  v.  Walker,  37  Me.  25.  244 
Greenfield  Bank  v.  Leavitt,  17 

Pick.  1,  298,  300 

Green  wade  v.  Fisher,  5  B.  Mon. 

167,  25 

Greer  v.  Powell,  1  Bush,  (Ky.) 

489,  298 

Gregory  v.  McDowell,  8  Wend. 

435,  309 

Grier  v.  Cowan,  Addis,  (Pa.)  347,  397 
Griffith  V.  Bogardus,  14  Cal.  410,  99 
Griffith  V.  Fowler,  18  Vt.  390,  175 
Griffith  V.  Smith,  22  Wis.  646, 

148,  169 
Grinnell  v.  Phillips,  1  Mass.  530, 168 
Griswold    ■».    Boley,   1    Blake, 

(Mon.)  545,  197 

Groat  V.  Gile,  51  K  Y.  431,  101,  103 
Gould  V.  Barnard,  3  Mass.  199, 

277,  287 
Oodld  V.  Scannell,  13  Cal.  430, 

270,  272,  286,  290 


PAGES. 

Gould  V.  Warner,  3  Wend.  54, 

221,233,236,245,249,253 
Goulet  V.  Asseler,  22  N.  Y.  225,  321 
Guard  v.  Bradley,  7  Ind.  600,  251 
Guild  V.  Rogers,  8  Barb.  502,  392 
Gulett    V.    Lamberton,   1  Eng. 

(Ark.)  109.  41,43 

Guthrie  v.  Jones,  108  Mass.  191,  45 
Gwillim  V.  Holbrook,  1  Bos.  & 

Pul.  410,  234 

H. 

Hackett  v.  Bonnell,  16  Wis.  471,  419 
Haff  V.  Spicer,  3  N.  Y.  Term.  R. 

190,  357 

Hagan  v.  Deuell,  24  Ark.  216, 

138,  144.  145 
Hagan  v.  Lucas,  10  Pet  (U.  S.) 

400.  237,  255,  262,  263 

Hagan  v.  Providence  &  W.  R. 

R.  Co.,  3  R.  I.  88,  340 

Haggard  v.  Wallen,  6  Neb.  271,  78 
Haggertyt).Wilber,16Jolms.287,  163 
Haight  V.  Turner,  2  Johns.  371,  356 
Haile  v.  Hill,  13  Mo.  612,  328,  329 
Hall  V.  Amos,  5  T.  B.  Mon.  (Ky.) 

89,  392 

Hall  V.  Dean,  Cro.  Eliz.  841,  99 

Hall  V.  Gilmore,40  Me.  578,  182, 183 
Hall  V.  Henline,  9  Ind.  256.  376 

Hall  V.  Jenness,  6  Kan.  356,  415 

Hall  V.  Naylor,  18  N.  Y.  588,  182 
Hall  V    Robinson,  2  Comst.  (2 

N.  Y.)  293,      80.  199,  203,  207,  350 
Hall  V.  Smith,  10  Iowa,  45, 

231,  233,  267,  286,  332,  415 
Hall  V.  Tuttle,  2  Wend.  475, 

66,  138,  140,  141,  146 
Hall  V.  White,  3  Car.  &  P.  130. 

213,  216 
Hall  V.  White,  106  Mass.  599, 

77,  269 
Halleck  ■».  Mixer,  16  Cal.  574, 

48,  51,  52,  54,  347,  369 
Hallenbrake  v.  Fish,  8  Wend, 

547,  59 


1 


TABLE   OF    CASES   CITED. 


PAGES. 

Hallett  V.  Byrl,  Garth.  380,    148,  157 
Hallett  V.  Fowler,  8  Allen,  93, 

68,  274 

Hallett  c.  Fowler,  10  Allen  36,  274 
Hallett ».  Mountstepheu,  2  Dow. 

&  Ry.  343,  221,  234,  241 

Halterlinev.  Rice,  62  Barb.  593,  103 
Hambly  v.  Trott,  1  Cowp.  371, 

347,  429 
Hamer  o.  Hathaway,  33  Cal.  117, 

295,  296,  301,  307.  309 
Hamilton  v.  Mitchell,  6  Blackf. 

131,  60 

Hamilton  v.  Singer  Manuf.  Co., 

54  111.  370,  204 

Hamilton  v.  Stewart,  59  111.  330, 

44,  167 
Hammond?). Eaton,  15 Gray,  186,  239 
Hannauer  v.  Bartels,  2  Gol.  514, 

319,  321,  350 
Handley  v.  Hathaway,  4  T.  B. 

Mon.  (Ky.)  534,  229 

Hanford  v.  Obrecht,  38  111.  493, 

269,  270,  271,  404,  405 
Hanford  -o.  Obrecht,  49  111,  146, 

269,384,405 
Hanna  v.  International  Petlm. 

Go.,  23  Ohio  St.  622,  240 

Hanna  v.  Steinberger,  G  Blackf. 

520,  156 

Hanover  R.  R.  v.  Coyle,  55  Pa. 

St.  396,  342 

Hanrahan  v.  O'Reilly,  102  Mass. 

201,  45 

Hansard  v.  Reed,  29  Mo.  473,  233 
Hanson  v.  Millett,  55  Me.  184,  106 
Harding  v.  Goburn,  12  Met. 333, 

98,  100,  199 
Hardy  v.  Clendening,  25  Ark. 

436,  32,  205 

Hardy  v.  Donellan,  33  Ind.  501,  93 
Hardy  v.  Keeler,  56  111.  152,  259 
Hardy  v.  Sprowle,  32  Me.  322, 

86,87 
Hare  -o.  Stegall,  60  111.  380,  393 

Ilarington    v.    Macmorris,     5 
Taunt.  228,  383,  386 


PAGES. 

Harker  v.  Dement,  9  Gill.  (Md.) 

7,  379 

Harlan  «.  Harlan,  15  Pa.  St.  507, 

22,  23,  43,  47,  52,  65 
Harman  v.  Fishar,  1  Cowp.  117,  187 
Harman  v.  Goodrich,  1  Greene, 

(Iowa,)  13,  280 

Harriman  v.  Wilkins,  20  Me.  93, 

222,  224,  226 
Harris  v.  Hillman,  26  Ala.  380, 

83,  210 
Harris    v.    Newman,    5    How. 

(Miss.)  654,  117 

Harris  v.  Smith,  3  S.  &  R.  (Pa.) 

20,  69,  190,  193,  351,  369 

Harrison  v.  Barnby,  5  Terra.  R. 

246,  395, 398 

Harrison  v.  M'Intosh,  1  Johns. 

380,    66,  90,  190,  270,  376,  381,  397 
Harrison  v.  Wardle,  5  Barn.  & 

Adolp.  146,  232 

Harrison  v.  Wilkin,  69  K  Y.  413,  241 
Harrod  v.  Hill,  2  Dana,  (Ky.) 

165,  235 

Hart  V.  Fitzgerald,  2  Mass.  509, 

22,  23,  87,  88,  95 
Hart  V.  Ten  Eyck,  2  John.  Ch. 

R.  62,  109 

Hart  V.  Vinsant,  6  Heisk.  (Tenn.) 

616,  51 

Hartford  v.  Jones,  1  Ld.  Raym. 

393,  204 

Hartford  v.  Jones,  2  Balk.  651,      97 
Hartgraves  v.   Duval,    1    Eng. 

(Ark.)  506,  277,  287 

Harvy  v.  Stokes,  Willes,  6,  245 

Harwood  v.  Smethurst,  5  Dutch. 

(29  N.  J.)  195,  22,  29,  37, 

60,  373,  380 
Haskill  V.  Andros,  4  Vt.  609, 

139,  151 
Hatch  V.  Dwight,  17  Mass.  289,  56 
Hatch  V.  Fowler,  28  Mich.  205, 

65,  68,  69,  71,  83,  386 
Hatch  v.  Hart,  2  Mich.  289,  316 

Hathaway  v.  St.  John.  30  Conn. 

343,  81 


TABLE   OF   CASES   CITED. 


li 


PAGE8. 

Haverstick   v.  Fergus,  71   111. 

105,  74 

Hawes  v.  Smith,  3   Fairfield, 

(Me.)  429,  238 

Hawkins  v.  Eckles,  2  Bos.  & 

Pul.  359,  398 

Hawkins  v.  Hoffman,  6  Hill, 

586,  80,  203,  210 

Hawkins  v.  Johnson,  3  Blacki. 

46,  370 

Hawley  v.  Bates,  19  Wend.  633,  239 
Hawley  v.  Warner,  13  Iowa,  42, 

248,  415 
Hay  V.  Hayes,  56  111.  343,  162 

Hayden  v.  Anderson,  17  Iowa, 

158,  425 

Haydon  v.  Haydon,  1  Salk.  392,  93 
Hays  V.  Bonthalier,  1  Mo.  345,  258 
Haythorn  v.  Rushforth,  4  Har. 

(19  N.  J.)  160,  38,  59.  205 

Hayward  v.  Seaward,  1  Moore 

&  Scott.  459.  78 

Hazzard  v.  Benton,  4  Har.  (Del.) 

63,  171,  173 

Heagle  v.  Wlieeland.  64  111.  423, 

125.  130, 133,  136 
Heald  v.  Gary,  11  Com.  B.  993,  201 
Heard  v.  James,  49  JMiss,  236, 

32,  95,  117,  119,  339,  342 
Heath  v.  West,  8  Foster,  (N.  H ) 

101,  66 

Heaton  v.  Findlay,  13  Pa.  St. 

304,  46,  47 

Heeron  v.  Beckwith,  1  Wis.  17, 

28,  278,  375,  404,  406,  414 
Heinmuller  v.  Gray,  44  How. 

Pr.  R.  260,  430 

Hellings  v.  Wright,  14  Pa.  St, 

373,  54,  396,  429 

Helser  v.  Pott,  3  Barr.  (Pa.)  179,  397 
Hemenway  v.  Bassett,  13  Gray, 

378.  55 

Hemstead  v.  Colbum,  5  Cranch. 

C.  C.  655,  284 

Hench  v.  Metzer,  6  S.  &  R.  273,  439 
Hendricks  v.  Decker,  35  Barb. 

298,  74,  298,  368 


PAGES. 

Hendrickson  v.  Kingsbury,  21 

Iowa,  379.  337 

Henry  v.  Fine.  23  Ark.  417,  197 

Hensley  v.  Brodie,  16  Ark.  511,  49 
Herbert  v.  Waters,  1  Salk.  205,  333 
Herdic  v.  Young,  55  Pa.  St.  176, 

23,  39,  65,  119,  284,  336,  333 
Herron  v.  Hughes,  25  Cal.  555, 

79,  179,  202,  363,  364 
Hershey  v.  Fry,  1  Iowa,  593,  124 
Hershler  v.  Reynolds,  23  Iowa, 

152,  245 

Hewitson  v.  Hunt,  8  Rich.  (S. 

C.)  106,  25 

Hewlett  V.  Owens,  50  Cal.  474,  87 
Hew.son  v.  Safiln,  7  Ohio,  Part 

II.  233,  408,  411 

Heyland  v.  Badger,  35  Cal.  404, 

33,  64,  121,  123 
Hlckey  v.  Hinsdale,  13   Mich. 

100.  31,  28,  36,  41,  81,  424 

Hicks  V.  Britt,  21  Ark.  423,  147, 197 
Hicks  V.  Flint,  21  Ark.  463,  60 

Hicks  V.  Haukin,  4  Esp.  114,  179 
Hicks  V.  Stull,  11  B.  Mou.  (Ky.) 

53,  223 

High  V.  Wilson,  3  Johns.  45,  375 
Hiles  V.  McFarlane,  4   Chand. 

(Wis.)  89,  258 

Hilger^.  Ed  wards,5  Nevada,  84,  59 
Hill    V.    Bloomer,    1     Pinney, 

(Wis.)  453,  277,  287 

Hill  V.  Covell,  1  Comst.  523, 

80,  200,  303 
Hill  V.  Fellows,  2d  Ark.  11,  410 

Hill  v.  Freeman,  3  Cush.  257, 

65,  183.  193 
Hill  V.  Miller,  5  S.  &  R.  (Pa.)  355,  39 
Hill  V.  Robinson,  16  Ark.  90, 

66,  87,  97 
Hill  V.  Stocking,  6  Hill,  277,  398 
Hills  V.  Parker,  111  Mass.  508,  140 
Hills  V.  Passage,  21  Wis.  294,  426 
Hilson  V.  Blain,  2  Bailey,  (S.  C.) 

168,  393 

Hinchman  v.  Patterson,  II.  R. 

R.  Co.,  17  N.  J.  Eq.  75,  88 


Hi 


TABLE   OF    CASES   CITED. 


PAGES. 

Hinckley  r.  West,  4  Gilm.  136,  403 
Hindis  V.  Blades,  5  Taunt.  225,  220 
Hines  v.  Allen,  55  Me.  114,  141, 145 
Hines  v.  Ament,  43  Mo.  298,  49 

Hinman  v.  Borden,   10  Wend. 

367,  166, 326 

Hiscox  V.  Greenwood,  4  Esp. 

174,  117 

Hisler  v.  Carr,  34  Cal.  645,  31,  308 
Hitchuiitn  v.  Walton,  4  Mees.  & 

W.  409,  56 

Hoadley  v.  Watson,  45  Vt.  289, 

315,  316,  338 
Hoag  V.  Breman,  3  Mich.  160,  419 
Hoare  v.  Parker,  2  T.  K.  376,  199 
Hobbs  V.  Myres,  1  B.  Mon.  (Ky.) 

241,  887 

Hooker  v.  Strieker,  1  Dall.  225, 

245,  170 

Hodgeden  v.  Hubbard,  18  Vt. 

504,  36 

Hodgkins  v.  Dennett,  55  Me. 

559,  106 

Hodson  V.  Warner,  60  Ind.  214, 

193,  355 
HoeflFner  v.  Stratton,  57  Me.  360,  272 
Hoef  heiner  v.  Campbell,  1  Luc. 

(10  Mod.)  157,  164 

Hoeser  v.  Kraeka,  29  Tex.  450, 

331,  411,  416 
Hoffman  v.  Carow,  20  Wend. 

21,  174,  177 

Hoffman  v.  Carow,  22  Wend. 

285,  174,  175,  177,  205 

Hoffman  v.  Noble,  6  Met.  (Mass  ) 

68,  191,  207 

Hohenthal  v.  Watson,  28  Mo. 

360,  280.  284,  289,  331 

Hoi  brook  v.  Hyde,  1  Vt.  286,  110 
Holbrook  v.  Wight,  24  Wend. 

169,  31,  73,  201.  213,  216 

Holcomb  V.  Davis,  56  111.  413,  204 
Holiday  v.   Hicks,    Cro.    Eliz. 

601,  99 

Holley  V.  Mix,  3  Wend.  350,         418 
Holliday  v.  Camsell,  1  Durnf.  & 
1    E.  658,  346 


PAGES. 

Holliday  v.  Lewis,  15  Mo.  403, 

69,  70 
Hollingsworth  v.  Dow,  19  Pick. 

228,  72 

HoUis  V.   Brandon,   1    Bos.   & 

Pull.  36,  353 

Hollis  V.  Smith,  10  East.  293,  347 
Holmark    v.    Molin,    5     Cold. 

(Tenn.)  482,  193 

Holmes  v.  Bell,  3  Cush.  323,  122 
Holmes  v.  Nuncaster,  12  Johns. 

395,  375 

Holmes  v.  Wood,  6  Mass.  1,  384 
Holton  V.  Binns,  40  Miss.  491, 

87,  88 
Holten   V.    Lewis,   1    McCord, 

(S.  C.)  12,  372 

Homan  v.  Laboo,  1  Neb.  204, 

196,  212 
Hooker  v.  Hammill,  7  Neb.  231, 

289,  294 
Hooser  v.  Hays,  10    B.   Mon. 

(Ky.)  72,  53 

Hoover  v.  Rhoads,  6  Iowa,  505,  357 
Hope  V.  Lawrence,  50  Barb.  258,  85 
Hopewell  v.  Price,  2  Har.  &  G. 

(Md.)  275,  283 

Hopkins  v.  Adams,  5  Abb.  Pr. 

R.  351,  429 

Hopkins  v.  Adams,  6  Duer,  685,  429 
Hopkins  v.  Burney,  2  Fla.  43, 

290,  384,  385 
Hopkins  v.  Drake,  44  Miss.  619,  140 
Hopkins  v.  Hopkins,  10  Johns. 

369,  30 

Hopkins  v.  Ladd,  35  111.  178,  245 
Hopkins   o.   Shrole,    1   Bos.   & 

Pull.  382.  273 

Hopkins  v.  Thompson,  2  Porter, 

(Ala.)  433,  350 

Home  ».Lewin,lLd.Raym.  639,  393 
Home  V.  Lewin,  2  Salk.  583,  393 
Horton    v.    Vowel,    4    Heisk. 

(Tenn.)  622,  233 

Horwood  V.  Smith.  2  T.  R.  751,  176 
Hoskins    v.  Robins,  3  Saund. 

320,  note  1.  833 


TABLE    OF   CASES    CITED. 


llii 


PAGES. 

Hosmer  v.  Clarke,  2  Gr.  (Me.) 

308,  198,  213 

Hotchkiss  V.  Ashley,  44  Vt.  195, 

39,  404,  407,  409 
Hotchkiss  V.  Hunt,  49  Me.  213, 

107,  178,  193 
Hotchkiss  V.  Jones,  4  Porter, 

(Ind.)  260,  22,  292 

Hotchkiss     V.    McVickar,     12 

Johns.  403,  66 

Houghton  V.  Peck,  8  Pa.  St  42,  313 
Houghton  V.  Ware,   113  Mass. 

49,  223,  230 

Howard  t).  Black.  49  Vt.  9,  39.) 

Howard  v.  Dill,  7  Geo.  52,  392 

Howe    V.    Freeman,    14    Gray, 

(Mass.)  566,  154 

Howe  V.  Handley,  28  Me.  241, 

228,  251,  311 
Howe  V.  Shaw,  56  Me.  291,  78,  81 
Howland  v.  Fuller,  8  Minn.  50,  152 
Howland  v.  Woodruff,  60  N.  Y. 

74,  178 

Hoy  V.  Rogers,  4  Mon.  (Ky.) 

225,  228 

Hoyt  V.  Thompson,   1   Selden, 

(N.  Y.)  320,  349 

Hoyt  V.  Van  Alstyne,  15  Barb. 

568,  378,  379 

Hubloun's  Case,  Skinner,  65,  59 
Hudler  v.  Golden,  36  N.  Y.  446, 

125,  126,  133 
Hudson  V.  Maze,  3  Scam.  578, 

197,  199,  207 
Huebschman  v.  McHenry,    29 

Wis.  655,  42,  49,  50 

Huff  V.  Gilbert,  4  Blackf.  19,  406 
Huggeford  v.  Ford,   11    Peck, 

223,  295.  310,  333 

Hume  V.  Gillespie,  3  T.  B.  Mon. 

(Ky.)  181,  60 

Hume  V.  Tufts,  6  Blackf.  136,  66 
Humfrey  v.  Misdale,  Comb.  11,  332 
Humphrey  v.  Taggart,   38  111. 

228,  232,  233,  245 

Humphries  v.  Johnson,  20  Ind. 

190,  338 


PAGES. 

Hungerford  v.  Red  ford,  29  Wis. 

345,  51,  117,  336 

Hunn  V.  Hough,  5  Heisk.  708,  170 
Hunt  V.  Bennett,  4  G.  Gr.  (Iowa,) 

512,  269,  380,  403,  408 

Hunt  V.  Bullock.  23  III.  325,  122 
Hunt  V.   Chambers,    21    N.  J. 

(1  Zab.)  620,     27,  34,  59,  61,  67,  87, 

8!>,  272,  375.  378.  380,  384 

Hunt  V.  Kane,  40  Barb.  638,  82 

Hunt  V.  Pratt,  7  R.  I.  283,  139 

Hunt  V.  Robinson,  11  Cal.  262, 

23,  237,  255,  260,  263,  381 
Hunt  V.  Rousmanier,  8  Watts, 

174,  347 

Hunt  V.  Strew,  33  Mich.  85,  62,  65 
Hunter  v.  Hudson  Riv.,  etc.,  20 

Barb.  493,  181,  368 

Hunter  v.  Hunter,  19  Barb.  631.  106 
Hunter  v.  Le  Conte,  6  Cow.  728,  393 
Hunter  v.   Sherman,   2    Scam. 

539,  236,  245,  253 

Hurd  V.  Gallaher,  14  Iowa,  394,  244 
Hurd    V.   Simonton,   10   Minn. 

423,  366,  367,  370 

Hurd  V.  West,  7  Cow.  753,  32.  36,  95 
Hurst  V.  Cook,  19  Wend.  463.  379 
Hurst  V.  Gwennap,   2  Starkie, 

306,  65,  189 

Hussey  v.  Thornton,  4  Mass.  405, 

182,  193 
Huston  V.  Wilson,  3  Watts.  287,  408 
Hutchins  v.   Hutchins,  7  Hill, 

(N.  Y.)  104.  202 

Hutchinson  v.  Bobo,  1  Bailey, 

{S.  C.)  546,  202 

Hutchinson  v.  Hunter,  7  Barr. 

(Pa.)  140,  102 

Hutchinson  v.  McClellan,  2  Wis. 

17.  27,  169 

Hutt  V.  Bruckman,  55  111.  441,  39 
Hutton    V.    Denton,    3  Carter, 

(Ind.)  644,  249 

Hyatt  V.  Adams,  16  Mich.  180,  340 
Hyatt  V.  Wood,  4  Johns.  150,  139 
Hyde  v.  Cookson,  21  Barb.  92. 

110,  117,  118 


liv 


TABLE   OF    CASES    CITED. 


PAGES. 

Hyde  v.  Noble,  13  N.  H.  494, 

179.  189,  207 
Hyde  v.  Stone,  7  Wend.  354,        295 


Ice  V.  Lockridge.  21  Tex.  461,  367 
111.  &  St.  L.  R.  R.  &  Coal  Co.  v. 

Ogle,  82  111.  627,  334 

Ilsley  V.  Stubbs,  5  Mass.  280, 

22,  30,  81,  141.  144, 146 
Ingalls  V.  Bulkley,  13  111.  315, 

32,  197, 199,  207,  214 
Ingalls  V.  Bulkley,  15  111.  224.  388 
Ingalls  V.  Lord,  1  Cow.  (N.  Y.) 

240.  304 

Ingersoll  v.  Emmerson,  1  Carter, 

(Ind.)  76,      59,  61,  67,  178, 180, 189 
Ingersoll  v.  Van   Bokkelin.   7 

Cow.  670,  322,  323,  327 

Inglebright    v.    Hammond,  19 

Ohio,  337,  112, 114 

Ingraham  v.  Hammond,  1  Hill, 

353,  272,  376,  377 

Ingraliam  v.  Martin,  15  Me.  373, 

269,  275 
In  re  Bronson  &  Mitchell,  12 

Johns.  460,  356 

In  re  Vogle,  7  Blatchf.  19.  140 

Irving  V.  Motley,  7  Bing.  543,  183 
Ii-win  V.  Knox,  10  Johns,  365.  407 
Isaac  V.  Clark,  2  Bulst.  310,  34,  216 
Ives  V.  Carter,  24  Conn.  392,  315 
Ives  V.   Humphreys,    1    E.  D. 

Smith,  196,  193,  294 


Jack  V.  Martin,  12  Wend.  311,     404 
Jackson  v.  Anderson,  4  Taunt. 

24,  99 

Jackson  v.  Bronson,  19  Johns. 


26, 


56 


Jackson  v.  Hale,  14  How.  (U. 

S.)  525,  112 

Jackson  v.  Sparks,  36  Geo.  445,     28 
Jackson  v.  Virgil,  3  Johns.  540, 

357,  428 


Jacoby  v.  Laussatt,  6  S.  &  R. 

(Pa.)  300.      205,  214,  215,  216.  298 
James  v.  Griffin,  2  Mees.  &  W. 

622,  187 

James  v.  Stratton,  32  111.  202,  93 
Jamison  v.  Moon,  43  Miss.  598,  337 
Jansen  v.  Acker,  23  Wend.  480,  150 
Jansen  v.  Effey,  10  Iowa,  227, 

274,  285,  287,  415 
Jarrard  v.  Harper,  42  111.  457, 

271,  406 
Jefferson    v.    Chase,    1    Houst. 

(Del.)  219,  179 

Jetfery  v.  Bastard,  4  Adol.  &  E. 

823,  164,  226 

Jenkins  v.  Steanka,  19  Wis.  126, 

111,411 
Jenner  v.  Joliffe,  9  Johns.  381,  138 
Jennings  v.  Gage,  13  111.  610, 

182,  188,  190,  191, 193 
Jennings  v.  Johnson,  17  Ohio, 

154,  265, 335 

Jennisonu.  Haire,  29  Mich.  207, 

228,  235,  244,  249,  251 
Jessop  V.  Miller,  1  Keyes,  (N. 

Y.)  321,  192,  200,  210 

Jimmerson  v.  Green,  7  Neb.  26,    59 
Jocelyn  v.  Barrett,  18  Ind.  128,      82 
Johnson  v.  Barber,  5  Gilm.  425,    46 
Johnson  v.  Carnley,  6  Seld.  (N. 
Y.)  570,  22,  28,  60,  67, 

272,  358,  365,  376 
Johnson?). Evan, 7 Man. &G. 240,  93 
Johnson  Ex  parte,  7  Cow.  424.  258 
Johnson,  Admr.,  v.  Garlick,  25 

Wis.  705,  80 

Johnson  v.  Howe,  2  Gilm.  342, 

212,  272,  388,  404,  408 
Johnson -».  Johnson, 4  Har.(Del.) 

171,  197 

Johnson  v.   Marshall,  34  Ala. 

522,  302, 329 

Johnson     v.    Neale,    6    Allen, 

(Mass.)  227,     59,  66,  102,  275.  279, 

365.  367,  878,  380 

Johnson  v.  Owens,  S  Cranch  C. 

C.  160,  395 


TABLE    OF    CASES    CITED. 


Iv 


PAQBS. 

Johnson  v.  Peck,  1  Wood  &  Mi- 

not.  C.  C.  334,  174,  184,  189 

Johnson  v.  Plowman,  49  Barb. 

473,  377 

Johnson  v.  Weedman,  4  Scam. 

495,  285,  320 

Johnson  v.  Willey,  4G  N.  H.  75, 

178,  179 
Johnson  v.  Woolyear,  1  Str.  507. 

36G,  384 
Johnston  v.  Salisbury,  61  111.  316,  28 
Jones  V.  Allen,  1  Head.  (Tenu.) 

626,  201, 300 

Jones  V.  Dowle,  9  Mecs.  &  W.  19,  83 
Jones  V.   Gundrim,  3  W.  &  S. 

(Pa.)  531.  398 

Jones  V.  Lowell.  35  Me.  539,  279,  327 
Jones  V.  M'Neil,  2  Bailey,  (S. 

C.)  466,  419 

Jones    V.    Peasley,    3    Greene, 

(Iowa,)  52,  260 

Jones  V.  Rahilly,  16  Minn.  320,  295 
Jones  V.  Sinclair,  2  N.  H.  319,  72 
Jones  V.  Spears,  47  Cal.  20,  212 

Jones  V.  Taylor,  30  Vt.  42,  123,  178 
Jones  V.  Thompson,  12  Cal,  191,  93 
Jordan  v.  Thomas,  31  Miss.  557,  277 
Joyal  V.  Barney.  20  Vt.  154.  323 

Judd  V.  Fox,  9  Cow.  259, 141, 147. 400 
Judson  V.  Adams,  8  Cush.  556,    230 


K 


Kafer  c.  Harlow,  5  Allen,  (Mass.) 

348,  251,  252,  311,  415 

Karr  ».  Barstow,  24  111.  580,  32,  362 
Kates  V.  Thomas,  14  Minn.  461.  418 
Kauffmann  v.  Schilling,  58  Mo. 

218,  95,  112,  113,  114 

Keaggy  v.  Hite,  12  111.  99, 

298,  304,  343 
Keegan  v.  Cox,  116  Mass.  289,  352 
Keeler  v.  Field,  1  Paige  Ch.  R. 

312,  193 

Kehoe  v.  Rounds,  69  111.  351, 

356,  421 


PAGES. 

Keite  v.  Boyd,  16  S.  &  R.  (Pa.) 

300,  22,  430 

Keller  v.  Boatman,  49  Ind.  104,  413 
Kellogg  t).  Churchill,  2  N.H.412,  141 
Kelsey  v.  Griswold,  6  Barb.  436, 

199,  427 
Kendall  v.  Fitts.  2  Fost.  (N.  H.) 

1,  23.  221,  239,  284,  413 

Kenley  v.  Commonwealth,  6  B. 

Mon.  (Ky.)  583,  239 

Kennedy  v.  Brent,  6  Cranch,  (U. 

S.)  187,  166 

Kennedy  v.  Shaw,  38  Ind.  474,  388 
Kennedy  v.  Strong,   14  Johns. 

128,  298 

Kennedy  v.  Whitwell,  4  Pick. 

466,  298 

Kennet    v.   Robinson,   3    J.  J. 

Marsh,  (Ky.)  84,  200,  203 

Kercheval    v.   Harney,   Meigs, 

(Tenn.)  403,  254 

Kerley  v.  Hume,  3  T.  B.  Mon. 

(Ky.)  181,  60,  205,  268,  270 

Kern  v.  Potter,  71  111.  19,  387 

Kerrigan  -p.  Ray,  10  How.  Pr. 

Rep.  213.  369 

Kesler  v.  Haynes,  6  Wend.  (N. 

Y.)  547,  222,  224 

Keyes  ®.  McNnlty,  14  Iowa,484,  245 
Keyser  v.  Harbeck,  3  Duer.  (N. 

Y.)  373,  182,  190 

Kidder  v.  Kidder,  33  Pa.  St.  268,  106 
Kier  v.  Peterson,  41  Pa.  St.  357,  47 
Kilby  V.  Wilson,  Ry.  &  Moody 

N.  P.  178-181,  183,  184,  190 

Killey  v.  Scannel,  12  Cal.  73,  209 
Killian  v.  Carrol,  13  Ired.  (N. 

C.)  431,  64,  71 

Kimball  v.  Adams,  3  N.  H.  182,  393 
Kimball  v.  Cunningham,  4  Mass. 

502.  188 

Kimball  «.  Lohmas,  31  Cal.  154, 

53,54 
Kimball  v.  Thompson,  4  Cush. 

(Mass.)  441.  88,  279 

Kimball  v.  True,  34  Me.  84, 

226,  359 


Ivi 


TABLE    OF    CASES    CITED. 


TAQES. 

Kimberly  v.  Patchin,  19  N,  Y. 

330,  114 

Kimmel  v.  Kint,  2  Watts,  (Pa.) 

431,  232,  239.  267 

Kinaston  v.  Moor,  Cro.  Car.  89,  97 
Kindy  v.  Green,  32  Midi.  310,  88 
King  V.  Blackmore,  72  Pa.  St. 

347,  5 

King  V.  Chase,  15  N.  H.  9,  1C8 

King  B.  Cole,  6  Term.  R  298, 

640,  356 

King  V.  Orser,  4  Duer.  fN.  Y.) 

431,  148,  168,  324 

King  V.  Orser,  5  Duer.  501,  152 

King  V.  Ramsay,  13  111.  619, 

249.  271,  272 
Kingsbury    v.    Buchanan,    11 

Iowa,  387,  59,  388 

Kingsbury's    Exrs.    v.    Lane's 

Exrs.,  21  Mo.  115,     21,  26,  27,  429 
Kingsford  v.  Merry,  34  E.  L.  & 

Eq.  607,  191 

Kinney  v.  Crocker,  18  Wis.  74, 

154,  160 
Kinney  v.  Mallory,  3  Ala.  626.  229 
Kinsey  v.  Leggett,  71  N.  Y.  387, 

180,  193 
Kipp  V.  Wiles,  3  Sandf.  585,  298 
Kirby    v.    Miller,     4     Coldw. 

(Teun.)  3,  59 

Kirk  V.  Nowell,  1  Term.  R.  261,  383 
Kirkham  v.  Hargraves,  1  Selw. 

(N.  P.)  425,  201 

Kitchell  v.  Vanadar,  1  Blackf. 

(Ind.)  356,  178 

Knapp  V.  Colburn,4  Wend.  616, 

30,  220.  236 
Knapp  V.  Smith,  27  N.  Y.  277,  36 
Kneas  v.  Filler,  2  S.  &  R.  263.  163 
Knowles  v.  Lord,  4  Whart.  (Pa.) 

500,  169,  372 

Knowlton  v.  Culver,  1  Chand. 

(Wis.)  214,  41 

Knowlton  v.  Culver,  2  Pin.  (Wis.) 

86,  41 

Kortright    v.    Com.    Bank,    20 

Wend.  91,  302 


PAGES. 

Kranert  v.  Simon,  65  111.  344,  189 
Krause  v.  Cutting,  28  Wis.  655,  408 
Krause  v.  Cutting,  32  Wis.  687,  408 
Kreger   v.   Osborn,    7    Blackf. 

(Ind.)  74,  36 

Kunkle  v.  State,  32  Ind.  220,        139 


Laborde  t.  Rumpa,  1  McCord, 

(S  C.)  15,  297 

Lacy  V.  Weaver,  49  Ind.  373,  89,  90 
Ladd  V.  Billings,  15  Mass.  15,  93 
Ladd  V.  North,  2  Mass.  514, 

75,81,352 
Ladd  V.  Prentice,  14  Conn.  109, 

233,  235,  268 
La  Fontaine  v.  Green,  17  Cal. 

294,  66 

Lahleyt).  Brady,  1  Daly.  (N.  Y.) 

443,  430 

Lamb  v.  Day,  8  Vt.  407,  283 

Lambden  v.  Conoway,  5  Har. 

(Del.)  1,  227,  231 

Lambert  v.  McFarland,  2  Nev. 

58,  411 

Lammers  v.  Meyer,  59  111.  214, 

102,  171 
Lance  v.  Cowan,  1  Dana,  (Ky.) 

195,  174 

Lander  v  Ware,  1  Strobh.  (S.  C.) 

15,  337, 398 

Landers  v.  George,  40  Ind.  160, 

272.  380 
Landers  v.  George.  49  Ind.  309,  296 
Landt  v.  Hilts,  19  Barb.  283,  162 
Lane  v.  Foulk,  Comb.  228,  234 

Langdoc  v.  Parkinson,  2  Bradw. 

(111.)  136,  225,233,317 

Langdon  v.  Buel,  9  Wend.  80,  121 
Langdon  v.  Paul,  22  Vt.  205, 

48,  51,  56 
La  Place  v.  Aupoix,  1  Johns. 

Ca.  407,  212,  213 

Larkin   v.  Robbins,    2   Wend. 

505,  426 


TABLE   OF    CASES    CITED. 


Ivii 


FAOES. 

Latham  v.  Blakeley,  70  N.  C. 

368,  55 

Lathrop  v.  Blake,  3  Fost.  (N.  H.) 

46.  170 

Lathrop  v.  Cook,  2  Shep.  (Me.) 

414,  2-3,  36,  79 

Lauman  v.   Des  Moines  C,  29 

Iowa,  310,  132 

Laverty  «.  Snethan,  Cent.  Law  J. 

April  1877,  330,  181 

Lavigne  v.  Russ,  36  Miss.  326,     396 
Lawrence  v.  Burnham,  4  Nev. 

361,  93 

Lawrence  v.  Coates,  7  Ohio  St 

194,  98 

Lawrence     v.     The     State,    1 

Humph.  (Tenn.)  227,  70 

Lawson  v.  Lay,  24  Ala.  184, 

26,  33,  197 
Lay  V.  Lawson,  23  Ala.  377,  329 

Layman  v.  Hendrix,  1  Ala.  212,  418 
Lazard  v.  Wheeler,  22  Cal.  140, 

23,  349.  350 
Leadbetter  v.  Kendall,  Hempst. 

(U.  S.  C.  C.)  302,  161 

Lear  v.  Montross,  50  111.  507.        150 
Learned  v.  Bryant,  13  Mass.  224, 

79,  426 
Leavitt  v.  Metcali,  2  Vt.  342, 

139,  151 
Lecky  v.  McDermott,  8  S.  &.  R. 

(Pa.)  500,  178 

Ledley  v.  Hays,  1  Cal.  160,  209 

Lee  n.  Gould.  47  Pa.  St.  398,         205 
Lee  V.  Portwood,  41  Miss.  109, 

177,  184,  189 
Legal  News,  April  7,  1877,  287,  180 
Lehman  v.  Kellerman,  65  Pa. 

St.  489,  54 

Leighton  v.  Brown,  98   Mass. 

515,  241,  252,  311 

Leighton  c.  Harwood,  111  Mass. 

67,  140 

Leonard  v.  Stacy,  6  Mod.  140,         7 
Leonard  v.  Tidd,  3  Met.  6,  206 

Leonard  v.  Whitney,  109  Mass. 

205,  252,  323,  323 


PAGES. 

Le  Roy  v.  East  Sag.  R.  R.,  18 

Mich.  233,  124,  125,  133, 

134,  147,  197 
Leroy  v.  McConnell,  8  Kan.  273,  307 
Lester  v.  East,  49  Ind.  588, 

75.  102,  106 
Lester  v.  McDowell,  18  Pa.  St. 

91,  59,  10.1 

Leven  v.  Smith,  1  Denio,  571,  19S 
Levi  V.  Darling,  28  Ind.  497,  171 
Lewis  V.  Blair,  1  N.  H.  69.  169 

Lewis  «.  Brackenridge,  1  Blackf. 

113,  358 

Lewis  V.  Buck,  7  Minn.  104. 

155,  271 
Lewis  V.  Lewis,  Minor,  (1  Ala.) 

95.  407 

Lewis  V.  Masters,  8  Blackf.  244, 

197,  199,  207 
Lill  V.  Stookey,  72  111.  495, 

267,  280,  413 
Lill,  etc.,  V.  Russell,  23  Wis.  178,  313 
Lillard  v.  Whitaker,   3    Bibb, 

(Ky.)  93,  298 

Lindley  v.  Kelley,  43  Ind.  294,  89 
Lindley  v.  Miller,  67  111.  244, 

285,  343,  393,  395,  398,  400 
Lindon  v.  Hooper,  1   Cowper, 

414.  28, 313 

Lindsay  v.  Armfleld,  3  Hawks, 

(N.  C.)  548,  166 

Lindsey  v.  Perry,  1  Ala.  (n.  s.) 

203,  41,  78,  79,  96 

Link  V.  Clemmens,  7  Blackf. 

479,  239 

Linsley  v.  Bushnell,  15  Conn. 

225,  315 

Lisher  v.  Pierson,  11  Wend.  58,  28 
Litchman  v.  Potter,  116  Mass. 

371,  100 

Litterel  v.  St.  John,  4  Blackf. 

326,  197 

Little  V.  Smith,  4  Scam.  400,  383 
Livingston  v.  Bishop,  1  Johns. 

290,  419 

Livingston  v.  Superior  Ct,  10 

Wend.  545,  228 


Iviii 


TABLE    OF    CASES   CITED. 


PAGES. 

Livor  v.  Orser,  5  Duer,  (N.  Y.) 

501,  131, 324 

Lloyd  V.  Brewster,  4  Paige,  537, 

183,  191 
Lloyd  V.  Goodwin,  12  S.  &  M. 

(Miss.)  333,  59,  331 

Lobdell    V.   Stowell,  51   N.  Y. 

70,  303 

Lockwood  V.  Bull,  1  Cow.  333, 

75,  170,  200,  301 
Lockwood    «.    Perry,    9    Met. 

(Mass.)  440,         337,  255,  260,  303, 
304,  430,  439 
Lneschman  v.  Machin,  2  Stark, 

311,  133.179,303 

Logan  V.  Houlditch,  1  Esp.  N. 

P.  C.  23,  214 

Loker  v.  Damon,  17  Pick.  384, 

313,  314 
Long  V.  Cockrell,  55  Mo.  93,  330 
Long  V.  Spruill,  7  Jones,  (N.  C.) 

96,  103 

Loomis  V.  Foster,  1  Mich.  165     383 
Loorais  V.  Tyler,  4  Day,  (Conn.) 

141,  24 

Loomis  V.  Youle,  1  Minn.  175, 

355.  300,  370,  434 
Loop  V.  Williams,  47  Vt.  407, 

383,  388,  405 
Lord  V.  Bicknell.  35  Me.  53,  230 
Lougee  v.  Colton,  9  Dana,  (Ky.) 

123,  386 

Louisville  &    Portland    Canal 

Co.  V.  Holborn,  3  Blackf.  307, 

140,  147 
Loveday  v.  Mitchell,  Comyns, 

247,  59, 380 

Lovcjoy  V.  Bright,  8  Blackf.  300. 

329,  355 
Lovejoy  v.   Jones,    10    Foster, 

(N.  H.)  164.  178,  179 

Lovett  V.  Burkhardt,  44  Pa.  St. 

173,  145,  259,  261,  264 

Low  V.  Martin,  18  111.  286, 

95,  109,  112 
Lovvdon    V.    Goodrick,     Peake 

N.  P.  46,  313 


PAQEg. 
Lowe    V.    Brigbam,    3    Allen, 

(Mass.)  429,  269,  374 

Lowe  V.  Lowry,  4  Ohio,  78,  413 

Lowremore?;.  Berry,  19  Ala.  130,  379 
Lowry  «.  Hall,  3  W.  <&  S.  (Pa.) 

139,      24,  26,  59,  144,  145,  175,  259 
Ludden  v.  Leavitt,  9  Mass.  104, 

65,  351,  353,  3G9 
Lull  v.  Matthews,  19  Vt.  333,  56,  57 
Lunt  V.  Brown,  13  Me.  836,  06 

Lupin  V.  Marie,  0  Wend.  77,        193 
Lupton  v.  White,  15  Ves.  433, 

109,  111 
Lutes  V.  Alpaugh,  23  N.  J.  L. 

105,  413 

Luther  v.  Arnold,  7  Rich.  (S.  C. 

L.)  397.  221 

Lutz  V.  Yount,  Phill.  (N.  C.  L.) 

367,  213 

Ljde  V.  Barker,  5  Binn.  457, 

323,  335,  336 
Lynch  v.  Welsh,  3  Pa.  St.  294,  117 
Lynd  v.  Picket,  7  Minn.  184,        150 


M. 

Machette  v.  Wanless,  1  Col.  235, 

404,  405,  410 
Machette  v.  Wanless,  3  Col.  169, 

319,  331 
Mack  V.  Parkes,  8  Gray,  (Mass.) 

517,  84 

Mackinley      v.     M'Gregor,     3 

Whart.  368,     33,  183,  187,  374,  377 
Macklot  «.  City  of  Davenport, 

17  Iowa,  379.  134,  133 

Madigan  ®.  McCarthy,  108  Mass. 

370,  43 

Magee  v.  Siggerson,  4  Blackf.  70,  357 
Magill  V.  Casey,  1  Day,  (Conn.) 

13,  243 

Magruder  v.  Marshall,  1  Blackf 

333,  243, 247 

Maids  V.  Watson,  13  Mo.  544,       413 
Malcom  v.  Loveridge,  13  Barb. 

372,  182,  188,  190 


TABLE   OF   CASES   CITED. 


lix 


FAOES. 

Mallam  v.  Arden,  10  Bing.  299,  394 
Mallory  v.  Willis,  4  Comst.  77,  117 
Maloney  v.  Griffin,  15  Ind.  213, 

144,  145 
Mann  v.  Grove,  4  Heisk.  (Teun.) 

403,  291 

Mann  v.  Perkins,  4  Blackf.  271,  375 
Manning    ■;;.  Albee,   11    Allen, 

(Mass!)  520,  184,  188 

Manning  v.  Albee,  14  Allen,  7, 

182,  184 
Manning  v.  Pierce,  2  Scam.  4,  245 
Mansfield  v.  Blackburn,  6  Bing. 

426,  43 

Marbury  v.  Madison,  1  Cranch. 

(U.  S.)  50,  42 

March  v.  Wright.  14  111.  248,  253 
Marchman  v.  Todd,  15  Geo.  25, 

22,  205 
Marienthal  v.  Shafer,6  Iowa,  223,  185 
Marix  v.  Franke,  9  Kan.  132,  415, 419 
Markhaui  v.  Jaudon,  41  N.  Y. 

(Hand.)  235 ;  49  Barb.  462,        301 
Markham      v.      Middleton.     2 

Strang.  1259,  407 

Marsh  v.  Pier,  4  Kawle,  273, 

90,  376,  424 
Marsh  v  White,  3  Barb.  518,  36,  139 
Marshall  v.  Davis,  1  Wend.  109, 

31,  33,  35,  66,  182,  368,  381,  385 
Marston  v.  Baldwin,  17  Mass. 

606,  23,  24,  182,  187,  193,  385 

Martin    v.    Bayley,    1    Allen, 

(Mass.)  381,  275,  277 

Martin  v.  Hill.  12  Barb.  631.  123, 178 
Martin  v.  Mott,  12  Wheat.  19, 

135,  136 
Martin  v.  Porter,  5  Mees.  &  W. 

353,  117,  118.  307.  334,  336 

Martin  v.  Ray,  1  Blackf.  (Ind.) 

291,  373,  376 

Martin  v.  Thomas,  24  How.  (U. 

S.)  316  240 

Martin  v.  Watson,  8  Wis.  315, 

75,  171,  367,  374 
Mason  v.  Richards,  12  Iowa,  73, 

240,  274,  287,  415 


PAGES. 

Mason  v.  Sumner,  22  Md.  312, 

254,  279,  327 
Masson  v.  Bo  vet,  1  Denio,  09,       188 
Mather  v.  Tlie  Minister  of  Trin- 
ity Church,  3  S.  &  R.  509, 

46,  51,  54 
Mathew  v.  Sherwell,  2  Taunt. 

439.  305 

Mathews  v.  Carey.  3  Mod.  137,         5 
Matlock  V.   Straughn,  21   Ind. 

128,  270 

Matteawan  Co.  v.  Bentley,   13 

Barb.  641,  82,  182,  188 

Matthews  v.  Coe,  49  N.  Y.  57,      301 
Matthews  v.  Storms,  72  111.  316, 

231,  344 
Mattingly  v.  Crowley,  42  111.  300, 

169.  258,  276 
Mattison   v.  Baucus,  1  Comst. 

295,  121 

Mattoon  v.  Pearce,  12  Mass.  406, 

251,  252,  295 
Maund  v.  Monmouth  Canal  Co., 

1  Carr.  &  Marsh.  603,  348 

Maxham     o.     Day,    16     Gray, 

(^[ass.)  213,        32,  42,  84,  163.  394 
Maxon  v.  Perrott,  17  Mich.  333, 

150,  258 
May  V.  Hoaglan,  9  Bush.  (Ky.) 

171,  107 

May  V.  Johnson,  3  Ind.  449.         251 

Mayberry    v.     Cliffe.     7    Cold. 

(Tenn.)  117,  265,  289,  294,  296,  302, 

303,  309,  314,  330,  331 

McArthur  v.  Currie's  Admr..  32 

Ala.  75,  210.  212 

McArthur  v.   Hogan,  Hempst. 

C.  C.  286,  60 

McArthur  v.  Howett,  72  111.  358,  320 
McArthur  v.  Lane,  15  Me.  245, 

88.  278,  288 
McAvoy  V.   Medina,  11  Allen, 

548,  70 

McBride     v.     McLaughlin,     5 

Watts.  (Pa  )  375,  338 

M'Cabe  v.  Moreliead,  1  W.  «&  S. 
(Pa.)  513,      292,  332,  337,  338,  341 


Ix 


TABLE   OF   CASES   CITED. 


McCarty    v.    Blevins,  5  Yerg. 

(Tenu.)  195,  79,  95 

McCarty  v.  Gage.  3  Wis.  404,  171 
M'Carty  v.  Vickery,  13  John.  348,  183 
McClaughry  v.  Cratzenberg.  39 

111.  117,  134,  137,  139,  131, 

30  6.  360,  428 
McClellan  v.  Marshall,  19  Iowa, 

561,  419 

McClung  V.  Bergfeld,  4  Minn. 

148,  377 

M'Colgan  v.  Huston,  2  Nott  & 

M.  (S.  C.)  444,  15 

,  M'Coinbie  v.  Davies,  6  East.  538.  306 

M'Combie  v.  Davies,  7  East.  5,      73 

McConnell  v.  Kibbe.  33  111.  175,  291 

McCormick  v.  McCormick,  40 

Miss.  760,  77,79 

McCoy  V.  Cadle,  4  Clark,  (Iowa.) 

557,  28,  63 

McCoy  D.  Reck,  50  Ind.  383,  366 
McCraw  v.  Welch,  3  Col.  384, 

375,  435 
McCurry  v.  Hooper,  13  Ala.  833,  376 
McDaniel  v.  Fox,  77  111.  343,  335 
McDermotts.  Doyle,  11  Mo.  443, 

231,  350 
McDermott  v.  Isbell.  4Cal.  113,  247 
McDonald  v.  North,  47   Barb. 

530,  295,  315,  341 

McDonald  v.  Prescott,  2  Nev. 

109,  173 

McDowell  V.  Rissell.  37  Pa.  St. 

164,  109 

M'Elderry  v.  Flannagan,  1  Har. 

&  G.  (Md.)  308,  87,  89 

McElroy  v.  Dice,  17  Pa.  St.  163,  394 
McElvain  v.  Mudd,  44  Ala.  48.  330 
M'Farland  v.   Barker,  1  Mass. 

153,  384,  385 

M'Farland  v.  M'Nitt,  10  Wend. 

330,  233, 236 

McFerrin    v.    Perry,   1   Sneed, 

(Tenn.)  314.  21 

McGavock  v.  Chamberlain,  20 

111.  219,  33,  388.  319 

M'Gee  v.  Given,  4  Blackf.  16  n.,  163 


PACKS. 

McGee  v.  Overby,  7  Eng.  (Ark.) 
164,  430 

McGinn  v.  Worden,  8  E.  D. 
Smith,  355,  350 

McGinnis  v.  Hart,  6  lotva,  304, 

346,  376 
McGoon  V.  Ankeny,  11  111.  558,  349 
McGuire  v.  Shelby.  20  Ala.  456,  379 
Mcllvaine  v.   Holland.  5  Har. 

(Del.)  10.  374 

Mcllvaine's  Admr.  v.  Holland, 

5  Har.  (Del.)  226,  277 

M'Intyre  v.  Carver,  2  Watts  & 

Serg.  393,  72 

Mclsaacs   v.    Hobbs,  8    Dana. 

(Ky.)  268,  59.  123 

McKay  v.  Batchellor,  3  Col.  591,  135 
McKeal«.  Freeman,  35  Ind.  151. 

347,  &76 
McKean  v.  Cutler,  48  K  H.  370, 

33,  384,  412 
McKee  v.  Judd,  2  Kernan,  (N. 

Y.)  622,  349 

McKinzie  v.  Bait.  &  Ohio  R.  R. 

28  Md.  161,  33 

McKnight  v.  Dunlop,  4  Barb.  36.  3b8 
McKnight  v.  Morgan.  3  Barb. 

171,  184,  189 

McLarren  v.  Thompson,  40  Me. 

385,  385,  355,  417 

McLaughlin  v.  Piatti,  27  Cal. 

451,  61,  63,  92 

M'Laughlin  v.  Waite,  9  Cow. 

670,  70, 71 

McLaughlin  v.  Waite,  5  Wend. 

405.  70, 71 

McLean  v.  Cook,  23  Wis.  364.  162 
McLean  Co.  Coal  Co.  ■».  Long, 

81  111  359,  334 

M'Leod  V.  M'Ghie,  2  M.  &  G. 

(40  E.  C.  L.)  326,  305 

McLeod  V.  Gates,  8  Ircd.  (N.  C.) 

387,  138 

McMillen  v.  Anderson,   U.   S. 

Sup.  Ct.  Oct.  1877.    Page  445 

Cent.  Law  Journal,  Nov.  33, 

1877,  127 


TABLE    OF   CASES    CITED. 


Ixi 


PAGES. 

McMorris  v.  Simpsou,  ai  Wend. 

610,  179 

McNail  V.  Ziegler,  68  111.  224,  193 
McNamara*.  Eisenleff,  14  Abb. 

Pr.  (N.  s.)  25,  414 

McNeal  v.   Leonard,   1    Allen, 

399,  424 

McNeal  v.   Leonard,  3  Allen, 

(Mass.)  268.  276,  424 

McNeeley  v.  Hunton,  80  Mo.  332,  36 
McNeill  V.  Arnold,  17  Ark.  154,  208 
McPheloniy  v.  Solomon,  15  Ind. 

189,  127 

McPherson    v.    Melhinch,    20 

Wend.  671,    355,  385,  396.  398.  399 
M'Rca  V.  M'Lean,  3  Porter,  (Ala.) 

138.  237,  255, 264 

McTaggart  v  Rose.  14  Ind.  230,  374 
Mead  v.  Kilday.  2  Watts  110.  60 
Meany  v.  Head,  1  Mas.  C.  C.  319,  23 
Mears  v.  Waples,  3   Houston, 

(Del.)  581,  191 

Meeker  v.  Chicago  Cast  Steel 

Co.,  84  111.  276,^  308 

Megee  v.  Birnie,  3  Wright,  50,  147 
Melcher  v.  Lamprey,  20  N.  H. 

403,  141 

Meldrum  v.  Snow,  9  Pick.  441,  193 
Mellen  v.  Baldwin,  4  Mass.  480,  429 
Mellor  V.  Spateman,  1  Saund.  n. 

339,  291 

Melton  V.  McDonald,  2  Mo.  45,  66 
Melvin  v.  Winslow.  10  Me.  397, 

251,  328 
Mendelsohn  v.  Smith,  27  Mich.  2, 

21,28 
Menkens  v.  Menkens,  23  Mo. 

252,  304 

Mennie  v.  Blake,  6  Ellis  &  B. 

(88  E.  C.  L.)  843,  27,  30,  31,  34,  260 
Mercer  v.  James,  6  Neb.  406, 

78,  414 
Merchants'  S.  L.  &  T.  Co.  ■». 

Goodrich,  75  111.  554,  41,  297 

Meredith,  v.  Knott,  34  Geo.  222,  59 
Meriden  v.  Whedon,  31  Conn. 

118,  78 


PAOKS. 

Merrill  v.  Butler,  18  Mich.  294, 

297.  414 
Merritt  v.  Lumbert,  8  Gr.  (Me.) 

128,  429 

Merritt  v.  Miller,  13  Vt.  416,  139 
Merritt  v.  Thompson,  27  N.  Y. 

225,  426 

Mrrsereau  v.  Norton,  15  Johns. 

179,  93 

Meshke  v.  Van  Doren,  16  Wis. 

319,  324 

Messer  v.  Baily,  11  Foster,  (N. 

H.)  9,  22,  169,  286 

Meyers  v.  Schemp,  67  111.  469,  43 
Mickes  v.  Tousley,  1  Cow.  114.  151 
Middlebrook     v.     Corwin,     15 

Wend.  169,  48 

Middleton  v.  Bryan,  3  Maul.  & 

S.  155,  310,  329 

Mikesill  v.  Chaney,  6  Port.  (Ind.) 

52,  267,  269,  274,  286 

Milburn  v.  Beach,  14  Mo.  105,  325 
Miller  v.  Adsit,  16  Wend.  335, 

59,  76,  352,  369 
Miller  v.  Baker,  1  Met.  27,  168,  205 
Miller  v.  Bryan.  3  Iowa.  58,  22,  146 
Miller    v.    Commissioners     of 

Montgomery  Co.,  1  Ohio,  271,  245 
Miller  v.  Eatman,  11  Ala.  609,  88 
Miller  v.  Foutz,  3  Yeates,  (Pa.) 

418,  239,  350 

Miller  v.  Garling,  13  How.  Pr. 

N.  Y.  203.  341 

Miller  v.  111.  Cent.  R.  R.  Co.,  24 

Barb.  313.  80 

Miller  v.  Jones'  Admr.,  26  Ala. 

248,  67,  368,  379 

Miller  v.  Langdon,  Harper,  (S. 

C.)  131,  429 

Miller  v.  Moses,  56  Me.  128, 

169,  258,  269 
Miller  v.  Sleeper,  4  Cush.  369, 

33,  382,  384 
Miller  v.  Frets,  1  L^.  Raym.  324,  405 
Miller  v.  White,  14  Fla.  435,  259 
Miller  v.  Whitaon,  40  Mo.  97,  296 
Millett  V.  Hayford,  1  Wis.  401,    250 


Ixii 


TABLE  OF   CASES   CITED. 


PAOES. 

Milliken  v.  Selye,  3  Deaio,  54, 

356,  357 
Milliken  v.  Selye,  6  Hill,  623, 

139,  145,  165,  221.  259,  356 
Mills  V.  Gleason,  21  Cal.  274, 

239,  270,  272,  280,  333 
Mills  V.  Glover,  22  Geo.  322,  26 

Mills  V.  Malott,  43  Ind.  248,  87 

Mills  V.  Martin,  19  Johns.  7,  141 
Mills  B.  Kedick,  1  Neb.  437,  42,49 
Milton  V.  Bragdon,  23  N.  H.  507,  351 
Milwaukee  R.  R.  v.  Finney,  10 

Wis.  388,  340 

Miuchrod  v.  Windoes,  29  Ind. 

288,  97,  358 

Mires  v.  Solebay,  2  Mod.  242,  82,  216 
Mitchell  V.  Alestree,  Vent.  249,  273 
Mitchell  V.  Burch,  36  Ind.  529, 

22,  337,  341 
Mitchell  V.  Franklin,  3  J.   J. 

Marsh,  (Ky.)  477,  393 

Mitchell  V.  Hinman,  8  Wend. 

667,  28.  69,  75,  369 

Mitchell  V.  Ingram,  38  Ala.  395,  237 
Mitchell  V.  Roberts,  50  N.  H. 

486,  32,  36,  66,  81,  384 

Mitchum  v.  Stanton,  49  Cal.  302, 

239,  240 
Mitchell  0.  Williams,  4  Hill,  13, 

201,  213,  216 
Mitchell  V.  Worden,  20  Barb. 

253,  188 

Mobley  v.  Letts,  61  Ind.  11,  122 

Mohu  V.  Stoner,  14  Iowa,  115,  107 
Monty  V.  Arneson,  25  Iowa,  383,  142 
Moor  V.  Watts,  2  Salk.  581,  15 

Moore  v.  Bowmaker,  6  Taunt. 

379,  241,  261,  426 

Moore  v.  Bowmaker,  7  Taunt. 

97,  232.  241 

Moore  v.  Devol,  14  Iowa,  112,  403 
Moore  v.  Erie  R.  R.  Co.,  7  Lans. 

(N.  Y.)  39.  112 

Moore  v.  Hitchcock,  4  Wend. 

292.  72 

Moore  v.  Kepner,  7  Neb.  291, 

78,  294 


PAGES. 

Moore  v.  McKibbin,  33  Barb. 

246,  179 

]\[oore  V.  Moore,  4  Mo.  421,  38 

Moore  v.  Sample,  3  Ala.  319,  93 

Moore  v.  Schultz,  31  Md.  418,  313 
Moore  v.  Shenk,  3  Barr.  13,  289 

Moore  v.  Watts,  1   Ld.  Raym. 

613,  14 

Moore  v.  Westervelt,  1  Bos.  (N. 

Y.)  358,  166 

Moore  0.  Westervelt,  21  KY.103,  166 
Moore  v.  Wood,  12  Abb.  Pr.  R. 

(N.  Y.)  393,  334 

Moorman  v.  Quick,  20  Ind.  67, 

67,  368 
Moors  0.  Parker,  3  Mass.  310, 

244,  249 
More  V.  Clipsam,  Sty.  71,  98 

More  V.  Clypsam,  Allen,  33,  98 

Morey  v.  McGuire,  4  Vt.  327,  56,  57 
INIorford  v.  Unger,  8  Iowa,  83,  134 
Morgan  v.  Bradley,  3  Hawks. 

(N.  C.)  559,  34fi 

Morgan  v.  Congdon,  4  Comst. 

552.  73 

Morgan  v.  Craig,  Hardin,  (Ky.) 

101,  138 

Morgan  v.  Evans.  72  111.  586,  163 
Morgan  v.  Gregg,  46  Barb.  183, 

112,  113,  301,  303 
Morgan  v.  Griffiths,  7  Mod.  380,  233 
Morgan  v.  Jaudon,  40  How.  Pr. 

366,  301 

Morgan  v.  Morgan,  31  Miss.  546,  859 
Morgan  v.  Powell,  3  Adolp.  & 

Ellis,  (43  E.  C.  L.)  278,       334,  336 
Morgan  v.  Reynolds,  1  Blake, 

(Mont.)  163,  22,  319 

Morgner  v.  Biggs.  46  Mo.  65,  65 
Morris  v.  Baker,  5  Wis.  389, 

222.  296,  324 
Morris  v.  Cannon,  1  Har.  (Del.) 

220,  43 

Morns  v.  Danielson,  8  Hill,  168, 

67,  377 
Morris  v.  De  Witt,  5  Wend.  71. 

141,  144,  145 


TABLE   OF   CASES   CITED. 


Ixiii 


FAQEB. 

Morris  v.  Mathews,  3  Ad.  &  El. 

(N.  s.)  293,  234 

Morris  v.  Pugh,  3  Burr.  1241, 

200,  211 
Morris  v.  Van  Voast,  19  Wend. 

283,  72,  222 

Morrison  v.  Austin,  14  Wis.  601,  416 
Morrison  v.  Blodgett,  8  N.  H. 

238,  93 

Morrison  v.  Dingley,  63  Me.  553,  107 
Morrow  v.  Sheplierd,  9  3Io.  216,  240 
Morse  v.  Ilodsdon,  5  Mass.  314, 

228,  242.  247 
Morse  v.  Pike,  15  N.  H.  529,  98 

Morse  v.  Keed,  28  Me.  481,  73,  74 
Morss  V.  Stone,  5  Barb.  516,  272,  378 
Morton  v.  Sweetser,   12  Allen, 

(Mass.)  134,  420 

Moseley  v.  Anderson,  40  Miss. 

49,  150 

Moultou  v.  Bird,  31  Me.  296, 

270,  384 
Moulton  V.  Jose,  25  Me.  76.  167 

Moulton  V.  Norton,  5  Barb.  286,  168 
Moulton  V.  Smith,  32  Me.  406,  406 
Mount  V.  Derick,  5  Hill,  455, 

82,  213,  216 
Mt.  Carbon    Coal    Co.    v.  An- 
drews, 53  111.  176,        126, 128, 133, 
134,171,360,372,374,385 
Mowrey  v.  Walsh,  8  Cow.  238,    189 
Muck  V.  Folkroad,  1  Browne, 

(Pa.)  60,  366,  367 

Muggridge  v.  Eveleth,  9   Met. 

233,  59,  66 

Mulheisen  v.  Lane,  82  111.  117,  75 
Mulholm  V.  Cheney,  Addis,  (Pa.) 

301,  139 

Munroe  v.  Stickney,  48  Me.  462,  291 
Murdoch  v.  Will,  1  Dall.  (Pa.) 

341,  266,  359 

Murphy  v.  Tindall,  Hempst.  C. 

C.  10,  38 

Musprat  v.  Gregory,  3  Mees.  & 

W.  677,  398 

Myers  v.  Clark,  3  W.  «&  S.  (Pa.) 

535,  219, 331 


Myers  v.  Credle,  63  N.  C.  504,       78 
Myers  v.  Mayfield,  7  Bush.  (Ky.) 
212,  397 


N. 


Nalor  V.  Collinge,  1  Taunt.  19,      43 
Nash  V.  Fredricks,  12  Abb.  Pr. 

Kep.  147,  349 

Nash  V.  Mosher,  19  Wend.  431, 

35,  178,  180  182,  189 
Nashville  Ins.  Co.  v.  Alexander, 

10  Humph.  (Tenn.)  377, 

169,  258,  363,  409 
National  Bank  Cairo  ».  Crocker, 

111  Mass.  163,  107 

Nat.  Bank  G.  Bay  v.  Dearborn, 

115  Mass.  219,  106 

Neal  V.  Williams,  18  Me.  391,      189 
Neely  v.  Lyon,   18   Tenn.   (10 

Yerg.)  473,  36 

Nefr  V.  Thompson,  8  Barb.  213, 

33,  37,  38,  66,  178,  205 
Neiler  v.  Kelley,  69  Pa.  St.  403,  97 
Neis  V.  Gillen,  27  Ark.  184,  289.  330 
Nellis  V.  Bradley,  1  Sandf.  560,  188 
Nelson  v.  Iverson,  17  Ala.  219.  203 
Nelson  v.  Mclntyre,    1    Brad, 

(111.)  603,  60 

Nesbitt  V.  St.  Paul  Lumber  Co., 

31  Minn.  491,  176,  309 

Newell  V.  Hayden,  8  Iowa,  140, 

150,  151 
Newell  V.  Newell,  34  Miss.  385, 

33,  38,  313,  355,  357,  364 
Newkirk  v.  Dalton,  17  111.  413,  175 
Newman  v.  Bean.  31  N.  H.  93,  93 
Newman  v.  Bennett,  33  111.  427, 

213,  215,  351 
Newman  v.  Jenne,  47  Me.  520, 

32,  197,  206 
Newman  v.  Newman,  4  Maul.  & 

Selw.  70,  233 

Newman  v.  Tymeson,  13  Wis. 

172,  123 

Newton  v.  Gardner,  34  Wis.  33?, 

91,  346 


Ixiv 


TABLE   OF    CASES   CITED. 


PAGES. 

N.  Y.  Guarantee  Co.  v.  Flynn, 

65  Barb.  365,  295 

Niagara    Elev.   Co.    v.   McNa^ 

mara,  2  Hun.  416,  126,  325 

Niagara    Elev.   Co.    v.   McNa- 

mara,  50  N.  Y.  653.  325 

Nibblet  v.  Smitli,  4  Durnf.  &  E. 

266,  504,  41 

Nicholas  V.  Chapman,  2  H.  Bla. 

254,  204 

Nicholas  Ins.  Co.  v.  Alexander, 

10  Humph.  (Teun.)  377,  2S9 

Nichols  V.  Cowles,  3  Cow.  345,  356 
Nichols    V.    Dewey,    4   Allen, 

(Mass.)  386,  48 

Nichols  V.  Dusenbury,  2  Comst. 

(N.  Y.)  283,  398,  399 

Nichols  V.  Michael,  23  N.  Y. 

264,  79,  83,  84,  181,  187,  188 

Nichols  V.  Nichols,  10  Wend. 

630,  362,  366,  369 

Nichols  V.  Pinner.  18  N.  Y.  295, 

181,  187,  188 
Nickerson  v.  Chatterton,  7  Cal. 

568,  23,  237,  240,  246, 

276,  415,  418 
Nicolson  V.  Hancock,  4  Hen.  & 

M.  (Va.)  491,  25 

Nightingale  v.  Scannell,  18  Cal. 

315,  325, 342 

Nisbet  V.  Patton,  4  Kawle,  119,  213 
Noble  V.  Adams,  7  Taunt.  59,  182 
Noble  V.  Epperly,  6  Pc^rt.  (Ind.) 

414,  60,  87,  267,  271,  376, 

378,  380,  383,  405 
Noe  V.  Gibson.  7  Paige,  513,  140 
Nolty  V.  The  State.  17  Wis.  668,  101 
North  V.  Turner.  9  S.  &  II.  244,  349 
Northampton    Paper    Mills  v. 

Ames,  8  Met.  1,  56 

Norlhrup  v.  McGill,  27  Mich. 

238,  335 

Norton  v.  The  People,  8  Cow. 

137.  170,  171,  352,  869 

Nowlen  V.  Colt,  6  Hill,  461,  112 

NoxoQ  V.  Hill,  2  Allen,  (Mass.) 

215,  324,  325,  342 


PAOBfl. 

Noyes  v.   Haverhill,   11   Cush. 

338,  130 

Nunan  v.  San  Francisco,  38  Cal. 

689,  364 

Nunn  V.  Goodlett,  5  Eng.  (Ark.) 

89.  222,  225,  228,  230,  244,  246 


O. 


Oaks  V  Wyatt,  10  Ohio,  344,  886 
O'Brien  v.  Haynes,  61  111.  494,  2")8 
O'Brien  v.  Hi! burn,  23  Tex.  616,  379 
O'Brien  v.  Palmer,  49  III.  72.  403 
O'Connell  v.  Jacobs,  115  Mass. 

21,  210,  217 

O'Connor  v.  Blake,  29  Cal.  312, 

276,  381 
O'Connor  v.  Union  Line,  31  111. 

230,  171,  172,  374 

Odell  V.  Hole,  25  HI.  204, 

253,  294,  320 
O'Donnell  v.  Segar,  25  Mich. 

367,  151 

Otiatt  V.  Flagg,  10  N.  H.  46, 

123,  178 
Ogden  V.  Stock,  34  111.  522,  47 

O'Grady    v.    Keyes,     1     Allen, 

(Mass.)  284,  222,  224,  243 

Ohio  &  Miss.  R.  R.  Co.  v.  Kerr, 

49  111.  458,  189 

O'Keefe  v.  Kellogg,  15  111.  347, 

349,  403,  404,  417 
Oleson  V.  Merrill,  20  Wis.  462, 

37,  197.  199,  356,  370 
Oliver  v.  Townsend,  16   Iowa, 

480,  243 

Olmsted  v.  Hotailing,   1   Hill, 

317,  183.  183 

Ombony  v.  Jones,  21  Barb.  520,  43 
O'Neal  V.  Wade,  3  Porter,  (Ind.) 

410,  249, 333 

O'Neill  V.  Henderson,  15  Ark. 

235,  208 

Oustatt  V.  Ream,  30  Ind.  259,  96 
O'Reilly  v.  Good,  43  Barb.  521, 

126,  129 


TABLE   OF    CASES   CTYED. 


Ixv 


PAGES. 

Ormand  v.  Brierly,  Carth.  519,  234 
Ornisbee  v.  Davis,  18  Conn.  f)55,  254 
Onnsby  ■;;.  Vermont  Copper  Co., 

56  N.  Y.  ()23,  295,  298 

Orner    v.    Hollman,  4  Wbart. 

(Pa.)  45,  141 

Orr  V.  Bank  United  States,   1 

Ham.  (Ohio,)  37,  348 

Osgood  V.  Green.  10  Fost.  (N.  H.) 

210,  23.  399 

Osf^ood  V.  McConnell,  33  III. 

74.  403 

Osterliout  v.  Eoberts,  8    Cow. 

(N.  y.)  43,  419 

Otis  V.  Sill,  8  Barb.  103,  85,  88,  96 
Otis  V.  Williams.  70  N.  Y.  208,  149 
Otter  V.  Williams,  21  111.118, 

298,  341,  343 
Ouly  V.    Dicliinson,  5   Coldw.     * 

(Tenn.)  486,  414,  418 

Ousley  V.  Hardin,  33  111.  403,  340 
Overfield  v.  Burlitt,  1  Mo.  749,  33 
Oviatt  V.  Pond,  29  Conn.  479, 

295,  313 
Owen  V.  Boyle,  23  Me.  47,  36,  393 
Owen  V.  Gooch,  3  Esp.  567,  83 

Owen  V.  Nail,  6  T.  R.  339,  703,  223 
Owings  V.  Owings,  1  Har.  &  G. 

(Md.)  484,  88 

Oxley  V.  Cowperthwaite,  1  Dall. 

349,  219 

P. 

Pace  V.  Pierce.  49  Mo.  393,  33 

Pacific  Ins.   Co.  v.   Conard,   1 
Baldwin,  (C.  C.)  138, 

294,  296,  315,  340 
Packard  v.  Getman,  4  Wend. 

613,  59, 201 

Page  V.  Crosby,  24  Pick.  211, 

214,  216 
Page  V.  Fowler,  28  Cal.  605,  53 

Page  V.  Fowler,  39  Cal.  413. 

53,  54,  303 
Paget's  Case,  5  Coke's  Rep.  76  b.  48 
Paige  V.  Smith,  99  Mass.  395,       140 


PAGES. 

Pain  V.  Whittaker,  Ry.  &  MooJy, 

99,  61 

Palm  V.  Ohio  &  Miss.  R.  R.  Co., 

18  111.  217,  314 

Palmer  v.   Corwitb,  3    Chand. 

(Wis.)  297.  129 

Pangburn  v.  Patridge,  7  Johns. 

140,  22,  30,  67,  384 

Pardee    v.    Robertson,  6  Hill, 

550,  109 

Parham  v.  Riley,  4  Cold.  (Tenn.) 

5,  24,  66.  174,  286 

Park  V.  McDaniels,  37  Vt.  594. 

311,  315,  305 
Parker  v.  Browning,  8  Paige, 

388,  140 

Parker  v.  Garrison,  61  111.  250, 

89, 113 
Parker  v.  Hall.  55  Me.  363,  223,  230 
Parker  v.  Mel  lor,  Carth.  398,  277 
Parker  v.  Mellor,  1  Ld.  Raym. 

217,  377 

Parker  v.  Patrick,  5  D.  »&  E. 

103,  175.  191 

Parker  v.  Simonds,  8  Met.  305, 

336,  343,  351,  368,  311 
Parker  v.  Storts,   15  Ohio  St. 

351,  54 

Parks  V.  Barkham,  1  Mich.  95, 

361,  438 
Parlin  v.  Austin,  3  Col.  337,  389 
Parmalee  v.  Loomis,  34  Mich. 

243,  31, 419 

Parsley  «.   Huston,  3    Blackf. 

348,  371,  373,  380 

Parsons  v.  Boyd,  30  Ala.  113,    66,  88 
Parsons  v.  Dickinson,  11  Pick. 

353,  350 

Parsons    v.    Harper,   16   Gratt. 

(Va.)  64,  315 

Parsons    v.  Martin,   11    Gray. 

(Mass.)  Ill,  298 

Parsons  v.  Webb,  8  Green,  (Me.) 

38,  179,  197 

Parsons  v.  Williams,   9   Conn. 

236,  234 

Partridge  v.  Swazey,  46  Me.  414,  197 


Ixvi 


TABLE   OF   OASES   CITED. 


PAGES. 

Patchen  v.  Wilson,  4  Hill,  57,  347 
Patchin  v.  Pierce,  12  Wend.  61,  121 
Patterson  v.  Fowler,  22  Ark.  396,  68 
Patterson    v.  United  States,  2 

Wheat.  221,  403,  405 

Pattison  v.  Adams,  7  Hill,  (N. 

Y.)  126,  22,  59,  865,  367 

Patton  V.  Hamner,  28  Ala.  618,    373 
Paul  V.  Luttrell,  1  Col.  317, 
22,  24,  37,  78,  199,  202,  363,  367,  385 
Payne    v.  Bruton,  5  Eng.   (10 

Ark.)  53,  186,  356,  359 

Payne  v.  Drewe.  4  East.  523,  166 
Pearce  v.  Humphreys,  14  S.  & 

R.  23,  219 

Pearce  v.  Twichell,  41  Miss.  344, 

289,  347,  418 
Pearson  v.  Graham,  5  Ad.  &  El- 
lis, 899,  206 
Pearsons  v.  Eaton,  18  Mich.  80,  413 
Peck  V.  Brewer,  48  111.  54,  343 
Peck  V.  Jenness,  7  How.  (U.  S.) 

612,  274 

Peck  V.  Wilson,  22  111.  205, 

235,  245,  249 
Peirce  v.  Hill,  9  Porter,  (Ala.) 

151,  22,  24,  26,  142,  161 

Pemhle  v.  Clifford,  3  McCord, 

(S.  C.)  31,  236 

Pemble  v.  Clifford,  3  McCord, 

(S.  C.)  34.  236 

Penfleld  v.  Rich,  1  Wend.  380,  346 
Penny  v.  Little,  3  Scam.  (111.)  301,  391 
Pennybecker  v,  McDougal,  46 

Cal.  661,  54 

Pennybecker  v.  McDougal,  48 

Cal.  160,  42,  49,  333 

Penrose  v.  Green,  1  Mo.  774,  413 
People  V.  Albany  Com.  Pleas, 

7  Wend.  485,  124,  126,  129 

People  V.  Brown,  6  Cow.  41,  168 
People  V.  Core,  85  111.  248, 

165,  226,  359 
People  V.  McGarren,  17  Wend. 

4G0,  70 

People  ex  rel.,  etc.,  v.  N.Y.  Com. 

Pleas,  3  Wend.  644,  277 


PAJES. 

People  V.  Niagara  C.  P.,  4  WeLd. 

217,  290, 385 

People  V.  Sujiervisors  of  Che- 
nango, 11  N.  Y.  563,  133 
People  V.  Tioga  C.  P.,  1  Wend. 

291,  356 

People  V.  Tripp,  15  Mich.  518, 

415,  416 
Perigo,  etc.,  v.  Grimes,  3  Col. 

651.  426 

Perkins  v.  Barnes,  3  Nev.  557. 

20a,  212 
Perkins  v.  Rudolph,  36  111.  306.  426 
Perkins  v.  Smith,  4  Blackf.  209. 

356,  358,  361,  363 
Perkins  v.  Thornburgh,  10  Cal. 

189,  150 

Perley  v.  Balch,  23  Pick.  283,      188 
Perley  v.  Foster,  9  Mass.  112, 

59,  65,  69,  168 
Perreau  v.  Bevan,  5  B.  &  C.  284, 

220,  231,  233,  245,  320 
Perry  v.  Lewis,  49  Miss.  443.  413 
Peiry  v.  Richardson,  9  Gray, 

216,  141 

Persley  v.  Powers,  83  111.  125.       201 
Persse  v.  Watrous,  30  Conn.  139, 

12,  227,  231,  233.  234,  236,  255 
Peterson  v.   Haight,   3  Whart. 

(Pa.)  150,  343 

Petre  r.Duke,  Lutw.  360,  38,  397,  363 
Petrie  v.  Fisher,  43  111.  442.  225 

Pettengill  v.  Merrill,  47  Me.  109,  103 
Pettingill  v.  Rideout,  6  N.  H. 

454,  175 

Pettit  V.  Addington,  Peake,  62,    312 
Petty  grove  v.  Hoyt,  11  Me.  66, 

27,  231,  239,  333 
Peyton  v.  Robertson,  9  Wheat. 

527,  23 

Phelan    v.     Bonham,    4    Eng. 

(Ark.)  389,  73 

Phelps  V.  Owens,  11  Cal.  23,        343 
Pheuix  v.  Clark,  3  Mich.  327, 

291,  292,  345,  356,  ^60,  428 
Philips  V.  Harriss,  3  J.  J.  Marsh. 

(Ky.)  124,    31,  33,  138.  140,  274 


TABLE    OF   CASES   CITED. 


IxTli 


PAGES. 

Phillip  V.  Pierce,  3  Maul.  &  Sel. 

182,  233 

Phillips  V.  Hall.  8  Wend.  610, 

32,  75,  205 
Phillips  v.  Monges,  4  Whart. 

225,  343 

Phil  pott  V.  Dobbinson,  6  Bing. 

104,  397 

Phipps  V.  Boyd,  54  Pa.  St.  342,  397 
Pickard  v.  Low,  15  Me.  48,  123 

Pickens  v.  Oliver,  29  Ala.  528, 

290,  369 
Pickering  v.  Busk,  15  East.  38,  179 
Pickering  ■».  Pickering,   11  N. 

H.  141,  '  88 

Pickett  t.  Bridges,  10  Humph. 

(Tenn.)  171,  411,  416,  417 

Pierce    v.  Benjamin,  14  Pick. 

356,  298 

Pierce  t.  Stevens,  30  Me.  184,  59,  66 
Pierce  v.  Van  Dyke,  6  Hill,  613, 

37,  197,  199,  212,  270,  288,  356 
Pigafs  Case,  11  Co.  Rep.  27,  232 
Pike  V.  Gandall,  9  Wend.  149,  396 
Pilkington  v.  Trigg,  28  Mo.  95,  100 
Pilsbury  v.  Webb,  33  Barb.  213, 

178,  197 
Pinkerton  lo.  Railroad,  42  N.  H. 

424,  303 

Piper  V.  Martin,  8  Barr.   (Pa.) 

206,  46 

Piraui  v.  Barden,  Pike,  (5  Ark.) 

81,  33,  197,  208,  222,  224.  355 

Pirkins  v.  Rudolph,  36  111.  306, 

241,  251 
Pitt  V.  Owens,  9  Wis.  152,  193 

Plainfield  v.  Batchelder,  44  Vt. 

9,  383,  405 

Plant  V.  Crane,  7  Port.  (Ind.) 

486,  268 

Piatt  V.  Brown,  30  Conn.  336,  315 
Piatt  V.  Hibbard,  7  Cow.  497,  72 
Plunkett  V.  Moore,  4  Har.  (Del.) 

379,  226 

Poinsett  v.  Taylor,  6  Cal.  78,  168 
Polite  V.  Jefferson,  5  Har.  (Del.) 

388,  170 


PAGES. 

Pomeroy  v.  Crocker,  4  Chand. 

(Wis.)  174,  413 

Pomeroy  v.  Triraper,   8  Allen, 

398,  75,  98.  226,  359 

Pool  V.  Loom  is,  5  Ark.  110, 

169,  221,  258 
Poole  c.  Adkinson.  1  Dana,  110, 

178,  198,  213 
Poor  V.  Woodburn,  25  Vt.  234, 

183,  185,  188,  285,  355,  404,  417 
Pope  V.  Tillman,  7  Taunt.  642,  95, 97 
Porter  v.  Miller,  7  Tex.  468, 

26,  32,  253 
Porter  v.  Willet,  14  Abb.   Pr. 

Rep.  319,  26,  286 

Portland  Bank  v.  Stubbs,  6  Mass. 

422.  88 

Pothonier  d.  Dawson.  Holt  N. 

P.  383.  213 

Pott  T3.  Oldwine,  7  Watts,  173,     135 
Potter  X.  Hall,  3  Pick.  868,  9 

Potter  V.  James,  7  R.  I.  312,         238 
Potter  V.  Merchants'  Bank,  28 

N.  Y.  641,  304 

Potter  V.  North,  1  Wm.  Saund. 

347,  38,  277,  363 

Powell  V.  Bradlee,  9  Gill.  &  J, 

(Md.)  220,  138,  145,  184, 

187,  189,  190,  194 
Powell  V.  Hinsdale,  5  3Iass.  343. 

270,  285,  404,  417 
Powell  v.  Smith.  2  Watts,  126,  51 
Powers  V.  Bassford,  19  How.  Pr. 

309,  83, 210 

Powers  V.  Florance,  7  La.  Ann. 

524,  392 

Poyen  v.  McNeill,  10  Met.  291,    428 
Pozzoni  V.  Henderson,  2  E.  D. 

Smith,  146,  152.  324 

Prater  v.  Frazier,  11  Ark.  249, 

59.  363 
Pratt  V.  Donovan,  10  Wis.  378, 

245,  415,  416 
Pratt  V.  Parkman,  24  Pick.  42,  106 
Pratt  V.  Tucker,  67  111.  346,  270,  404 
Preface  8  Vol.  Coke's  Reports, 

xvii.  2 


Ixviii 


TABLE    OF   CASES   CITED. 


PAGES. 

Prentice  v.  Ladd,  12  Conn.  331,  86 
Presgrave  v.  Saunders,  2  Ld, 

Raym.  984,  274,  287,  377 

Presgrave  v.  Saunders,  1  Salk.  5,  379 
Presgrove  v.  Saunders,  .6  Mod. 

81,  "  377 

Presley  v.  Powers,  82  111.  125, 

60,  201 
PribWe  v.  Kent,  10  Ind.  325.  178 
Price  V.  Helyer,  4  Bing.  597,  33 

Price  V.  Talley's  Admr.,  18  Ala. 

21,  88 

Prime  v.  Cobb,  63  Me.  202,  207 

Pringle  v.  Phillips,  1  Sandf.  292,  380 
Pringle  v.  Phillips,  5  Sandf.  (N. 

T.)  157,  196, 198,  199,  207 

Printems  v.  Helfried,  1  Nott  & 

McC.  (S.  C.)  187,  395 

Prior  V.  White,  12  111.  261,  121 

Prosser  v.  Woodward,  21  Wend. 

205,  270,  272,  365,  367, 

368.  372,  376,  380 
Pufendorff  Law  of  Nature,  Bk. 

4,  Ch.  7,  §  10,  115 

Pugh  V.  Calloway,  10  Ohio  St. 

488,  298 

Pulis  V.  Bearing,  7  Wis.  231,  26 

Pullen  V.  Keneinger,  11  Int.  Rev. 

Rec.  197,  126,  127 

Purple  V.  Purple,  5  Pick.  226, 

237,  242 
Purves  V.  Moltz,  5  Rob.  (N.  Y.) 

653,  176,  198,  210 

Putnam  v.   Cushing,  10  Gray, 

(Mass.)  334,  117,  122 

Putnam  v.  Parker,  55  Me.  235,  90 
Putnam  v.  Wise,  1  Hill,  235,  346 
Putnam©.  Wyley,  8  Johns.  432,  66 
Pyle  V.   Pennock,  2  Watts   & 

Serg.  390,  46 


Q. 


Quincy  v.  Hall,  1  Pick.  357, 

272,  274,  375,  395 
Quinn  r.  Wallace,  6  Whart.  (Pa.) 
452,  394 


R. 

PAGES. 

Raiford  v,  Hyde,  36  Geo.  93,        138 
Ralston  v.  Black,  15  Iowa,  47, 

33, 146.  168,  205 
Ralston  v.  Hughes,  13  111.  469,  'A 
Ramsay  v.  Bancroft,  2  Mo.  151,  66 
Ramsdellv.  Buswell,  54  Me.  516. 

24,  33,  36,  81,  83,  149 
Ramsey  v.  Waters,  1  Mo.  408,  407 
Rand  v.  Nesmith,  61  Me.  Ill,  299 
Randall  v.  Cook,  17  Wend.  55,  132 
Ranney  v.  Thomas,  45  Mo.  Ill, 

267,  286,  287 
Rapalje  v.  Emory,  2  Dall.  (Pa.) 

51,  99 

Rapp  V.  Vogle,  45  Mo.  534,  93 

Rathbun  v.  Ranney,  14   Mich. 

382,  15,  268 

Read  v.  Markle,  3  Johns.  523,      427 
Reade  v.  Hawks,  Hob.  16,  138 

Rector  v.  Chevalier,  1  Mo.  345, 

31,  429 
Redman  v.  Hendricks,  1  Sandf. 

(N.  Y.)  32,  59,  131,  131 

Reece  v.  Hoyt,  4  Port.  (Ind.) 

169,  92 

Reed  v.  Reed,  13  Iowa,  5,  378 

Reed  v.  Spaulding,  42  N.  H. 

114,  106 

Reese  v.  Harris,  27  Ala.  301, 

59,  64,  66,  95,  379 
Reese  v.  Jared,  15  Ind.  143,  42,  336 
Reese  v.  Mitchell,  41  111.  365,  121 
Reeside  v.  Tischer,  2  Har.  &  G. 

(Md.)  320,  138 

Reeve  v.  Mitchell,  15  111.  297,      426 
Reeves  v.  Reeves,  33  Mo.  28, 

243,244 
Regina   v.  West,    1    Dearsley, 

402,  70 

Reinheimer  v.  Hemingway,  35 

Pa.  St.  432,  88,  90,  92 

Reist  V.  Heilbrenner,  11  Serg.  & 

R.  (Pa.)  131,  29,  429 

Remington  v.  Cady,  10  Conn.  44,    93 
Rex  V.  Jones,  1  Str.  704,  356 

Rex  V.  Lewis,  2  T.  R.  617,  224 


TABLE   OF   CASES   CITED. 


Ixix 


PAGES. 

Reynolds  v.  Lounsbury,  6  Hill, 

534,  363,  364,  366 

Reynolds  v.  McCormick,  63  111. 

413.  87,  337,  380 

Reynolds  v.  Sallee,  2  B.  Mon. 

(Ky.)  18,  151 

Reynolds  v.  Sliulcr,  5  Cow.  333, 

33,  45 
Rhines  v.  Phelps,  3  Gilm.  (111.) 

455,  144 

Rhoads  v.  Woods,  41  Barb.  471, 

75,  331.  333,  333 
Rhodes  v.  Bunts,  21  Wend.  19,  408 
Riccards  v.  Cornforth,  5  Mod. 

366,  13 

Rich  e.  Baker,  3  Denio,  79,  33 

Rich  ».  Penfield,  1  Wend.  380,  346 
Rich  V.  Ryder,  105  Mass.  306, 

73,  91,  330,  347 
Richardson  v.  Adkins,  6  Blackf. 

141,  406 

Richardson  o.   Reed,    4  Gray, 

(Mass.)  441,  36,  78,  81,  369, 

290,  353 
Richardson  v.   Smith,  29  Cal. 

539,  171, 380 

Richardson  v.  Vice,  4  Blackf. 

13,  393 

Richardson   v.  York,   2    Shep. 

(Me.)  215,  46,  48 

Ricker  v.  Kelly,  1  Gr.  (Me.)  117,  43 
Ricketts  v.  Dorrel,  55  Ind.  470, 

40,  43,  118,  119,  166 
Rickner  v.  Dixon,  2  G.  Greene, 

(Iowa,)  591.  272 

Riddle  v.  Driver,  12  Ala.  590,  117 
Riddle  v.  Parke,  13  Ind.  89,  386 
Riddle  v.  Weldon,  5  Whart.  9,  393 
Ridge  V.  Wilson,  1  Blackf.  (Ind.) 

409,  391, 394 

Riford    V.  Montgomery,  7  Vt. 

411,  176,  207 

Rigg  V.  Wilton,  13  111.  15,  383 

Rightmyer    v.    Raymond,     12 

Wend.  51,  117,  118 

Riley  v.  Boston  Water  Power 

Co.,  11  Cush.  11,    176,  197, 199, 207 


FAOE8. 

Ring  V.  Billings,  51  111.  475,  48 

Ringo  V.  Field,  1  Eng.  (6  Ark.) 

43,  384 

Ripley  v.  Davis,  15  Mich.  75, 

295,  308 
Ripley  v.  Dolbier,  18  Me.  383,  303 
Rives  V.  Wilborne,  6  Ala.  45, 

166,  263,  264 
Roach  V.  Binder,  1  Col.  322,  197 
Roach    V.  Moulton.    1    Ch^nd. 

(Wis.)  187,  226,  3-59 

Robbins  v.  Packard,  31  Vt.  570,  304 
Robbins'   Admr.  v.  Walker,  2 

Texas,  130,  319 

Roberts  v.  Mason,  10  Ohio  St. 

277,  316 

Roberts  v.  Randel,  3  Sandf.  (N. 

Y.)  707,  77,  83 

Roberts  v.  Tennell,  4  Litt.  (Ky.) 

286,  399 

Roberts  v.  The  Dauphin  Bank, 

19  Pa.  St.  71,  40,  55,  166 

Roberts  v.  Wyatt,  2  Taunt.  268. 

61,  72,  347 
Robertson©.  Davidson,  14  Minn. 

554,  236 

Robertson  v.  Jones,  71  111.  405, 

118,  334 
Robinson  v.  Atlantic  &  Gt.  W. 

Ry.,  66  Pa.  St.  160.  140 

Robinson    v.   Baker,    5    Cush. 

(Mass.)  137,  180,  209 

Robinson  v.   Barrows,  48  Me. 

186,  295,  298 

Robinson  v.  Calloway,  4  Ark. 

94,  68,  354,  367,  374,  380 

Robinson  v.  Camplin,  9  Iowa,  91,   61 
Robinson  v.  Hofman,  4  Bing. 

562,  394 

Robinson  v.  Mansfield,  13  Pick. 

139,  35,  205 

Robinson  v.  Richards,  45  Ala. 

354,  23,  34 

Rockwell  V.  Saunders,  19  Barb. 

473,  110,  414 

Rodesbaugh  v.  Cady,  1  West.  L. 

M.  599,  243 


Ixx 


TABLE   OF   CASES   CITED. 


PAGES. 

Rogers  v.  Arnold.  12  Wend.  30, 

21,  30,  60,  87,  270, 
355,  372,  380,  384,  388 
Rogers  v.  Huie,  2  Cal.  571, 

177,  201,  205 
Roland  v.  Gundy,  5  Ohio,  202,  178 
Romain  v.  Van  Allen,  26  (N.  Y.) 

309.  301 

Roman  v.  Stratton,  2  Bibb.  (Ky.) 

199,  228.  238,  247 

Ronge  V.  Dawson,  9  Wis.  246, 

88,404 
Roof  V.  Stafford,  7  Cow.  (N.  Y.) 

179,  35 

Root  V.  Bonnema,  22  Wis.  539, 

109,  197 
Root  V.  French,  13  Wend.  570, 

189,  191 
Root  ».  Woodruff,  6  Hill,  (N. 

Y.)  418,  95,  369,  370 

Ropes  V.  Lane,  9  Allen,  (Mass.) 

502,  75,  103.  106,  110 

Rose  V.  Cash,  58  Ind.  278,  28,  347 
Rose  V.  Gallup,  33  Conn.  338. 

110,  292 
Rose  V.  Groves,  5  M.  &  G.  613,  312 
Rose  v.  Hart,  12  111.  378,  404 
Rose  V.  Pearson,  41  Ala.  687,  329 
Rose  V.  Tolly,  15  Wis.  443, 

60,  66,  412,  413 
Ross  «.  Cassidy,  27, 37  How.  Pr. 

416,  83 

Ross  V.  Johnson,  5  Burr,  2825,  201 
Rotan  V.  Fletcher,  15  Johns.  208,  379 
Rotch  V.  Hawes,  12  Pick.  136,  178 
Rowan  v.  St.  Bank,  45  Vt.  160,  299 
Rowan  v.  Teague,  24  Ind.  304,  408 
R(nvark  v.  Lee,  14  Ark.  426,  414 
Rowe  V.  Sharp,  51  Pa.  St.  26,  193 
Rowell  V.  Klein,  44  lud.  290,  32.  48 
Rowland  v.  Mann,  6  Ired.  (N. 

C.)  38.  417 

Rowley  v.  Bigelow,  12  Pick.  307. 

182,  191 
Rowley  v.  Gibbs,  14  Johns.  385,  294 
Ruch  V.  Morris,  28  Pa.  St.  245, 

97, 102 


PAGES. 

Rucker  v.  Donovan,  13  Kan.  251, 

62,  368 
Russell  1).  Allen,  3  Kern.  (N.  Y.) 

173.  86,  89,  328 

Russell  V.  Butterfield,  21  Wend. 

300,  421 

Russell  V.  Minor,  22  Wend.  (N. 

Y.)  659,  59 

Russell  v.  Richards,  10  Me.  (1 

Fair.)  42!t,  49 

Russell  V.  Smith,  14  Kan.  366. 

289,  324,  342 
Ryan  v.  Brant,  42  111.  78,  188 

Ryan  v.  Clanton.  3  Strob.  (S.  C.) 

411,  123 

Ryder  v.   Hathaway,  21   Pick. 

298,  95,  111,  112,  114,  117 


S. 


Saffell  V.  Wash,  4  B.  Mon.  (Ky.) 

92,  152,  269,  324 

Sager  v.  Blain,  5  Hand.  (44  N. 

Y.)  445,  41,  59,  66,  99,  419 

St.  John  w.  O'Connell,  7  Porter, 

(Ala.)  466,  215 

St.  L.,  Alton  &  C.  R.  R.  v.  Cas- 

tello,  28  Mo.  379,  95,  119 

St.  Louis,  A.  &  C.  R.  R.  Co.  v. 

Dalby,  19  111.  353,  348 

St.  Martin  v.  Desnoyer,  1  Minn. 

41,  25 

Salkold  9.  Skelton,   Cro.  Jac. 

519,  268,  272,  274,  287,  377 

Salter  v.  Sample,  71  111.  430,     46,  47 
Saltus  V.  Everett,  20  Wend.  267, 

174,  189,  344 
Sammons  d.  Newman,  27   Ind. 

508,  243, 251 

Samuel  v.  Agnew,  80  111.  553, 

147,  153 
Sanborn  v.  Baker,  1  Allen,  526,  311 
Sanborn  v.  Colman,  6  N.  H.  14, 

178, 179 
Sanborn  v.  Leavitt,  43  N.  H.  473, 

144, 145 


TABLE   OF    CASES   CITED. 


Ixxi 


PAQE8. 

Sandeford    v.    Hess,    1     Head. 

(Tenu.)  G79,  172 

Sanders  v.  Keed,  12  N.  H.  558, 

48,  51,  55 
Sanders  v.  Young.  31  Miss.  Ill,  93 
Sanderson  v.  Lace,   1    Cliaud. 

(Wis.)  231,  267 

Sands  v.  Pfeifer,  10  Cal.  258,     48,  51 
Sanlord  Manuf.  Co.  v.  Wiggin, 

14  N.  H.  441,  31,  172,  384 

Sanger  v.  Kinkade,  16  111.  44,      370 
Sapsford  v.  Fletcher,  4  Term  R. 

512,  400 

Sargent  v.  Courrier,  66  HI.  245, 

89,90 
Sargent  v.  Gile,  8  N.  H.  325, 

178,  179 
Sargent  v.  Metcalf,  5  Gray,  306,  193 
Sargent  v.  Strum,  23  Cal.  359, 

181,  189,  191,  203,  208 
Sarjeant  v.  Blunt,  16  Johns.  74, 

178,  179,  181 
Savacool  v.  Boughton,  5  Wend. 

170,  126 

Savage  v.  Gunter,  32  Ala.  467. 

267,  275 
Savage  v.  Perkins,  11  How.  Pr. 

R  17.  78,  83,  200.  285 

Savercool  v.  Farwell,  17  Mich. 

308,  309 

Savile  v.  Roberts,  1  Ld.  Raym. 

374,  284 

Sawtelle  v.  Rollins,  23  Me.  196, 

31,  65,  67,  351 
Sawyer  v.  Baldwin,  1 1  Pick.  492,  41 
Sawyer  v.  Huff,  25  Me.  464, 

79,  384,  385,  386 
Sawyer  v.  Merrill,  6  Pick.  478,  197 
Saxton   V.  Williams,    15  Wis. 

292,  121 

Sayers    v.    Holmes,    2    Coldw. 

(Tenn.)  259,  332,  409,  417 

Sayward  i).  Warren,  27  Me.  453,    81 
Schaffer  v.  Faldwesch,  16  Mo. 

337,  359 

Schermerhorn  v.  Van  Volken- 

burgh,  11  Johns.  529,   67,  376,  379 


FAGES. 

Schimmelpennich  v.  Bayard,  1 

Pet.  264,  178 

Schofield  V.  Ferrers,  46  Pa.  St. 

438,  276,  311,  312,  338,  365 

School  Dist.  V.  Bragdon,  23  N. 

H. 507,  351 

School  Dist.  No.  5  v.  Lord,  44 

Me.  374,  66 

School   Dist.   V.   Shoemaker,  5 

Neb.  36,  284 

Schrader  v.  Wolflin,  21  Ind.  238, 

121,  235 
Schulenberg    v.   Campbell,    14 

Mo.  491,  33,  51 

Schulenberg    v.  Harriman,   21 

Wall.  (U.  S.)  44,  48.  114, 176,  376 
Schwartz  v.  Skinner,  47  Cal.  5, 

87,  89 
Scott  V.  Elliott,  Phill.  (N.  C.  L.) 

104,  69 

Scott  V.  Elliott,  63  N.  C.  215, 

21,  22,  41,  288,  295 
Scott  V.  Fuller,  3  Pa.  55,  397 

Scott  V.  Hughes,  9  B.  Mon.  (Ky.) 

104,  328,  376 

Scott  V.  King.  12  Ind.  203.  104 

Scott  V.  Rogers,  31  N.  Y.  676, 

181,  302 
Scrugham  v.  Carter,  12  Wend. 

131,  92 

Scudder  v.  Worster,    11   Cush. 

573,  101,  103,  114 

Seabury  v.  Ross,  69  111.  533,         292 
Seaman  v.  Luce,  23  Barb.  240, 

151, 322,  323,  414.  416 
Sears  v.  Wingate,  3  Allen,  103,  344 
Seaver  v.  Dingley,  4  Gr.  (Me.) 

306,  32,  182,  183,  184.  197,  212 
Seaver  v.  Lincoln,  21  Pick.  267,  425 
Seavy  v.  Dearborn,  19  N.  H.  351,  111 
Seay  v.  Bacon,  4  Sneed.  (Tenn.) 

99,  277 

Seeman  v.  Feeney.  19  Minn.  79,  340 
Seibert  v.   M'Heury,  6  Watts, 

301,  59, 110,  378,  380 

Selden  v.  Cashman,  20  Cal.  57, 

313,  339,  340,  343 


Ixxii 


TABLE    OF    CASES    CITED. 


PAGES. 

Seldner  v.  Smith,  40  Md.  603, 

28,  254,  273,  313,  322,  375,  419 
Seldon  v.  Hickock,  3  Term.  R. 

(N.  Y.)  166,  91 

Cellar  v.  Clelland,  2  Col.  532.  308 
Semanye's  Case,  5  Coke,  91,  163 
f^ewell's  Falls  Bridge  v.  Fisk, 

23  K  H.  171,  314 

Sc3'mour  v.  Billings,  12  Wend. 

286,  12,  270,  284,  285,  355, 

362,  378,  384.  385 
Shaddon    v.    Knott,    2    Swan, 

(Teun.)  357,  22,  141 

Siiannon  v.  Shannon,  1  Sch.  & 

Lef.  (Irish,)  324.  7,  22,  29,  31 

Sharp  V.  Gray,  5  B.  Mon.  (Ky.)  4,  419 
Sharp  V.  Parks,  48  111.  511,  174 

Sharp  V.  Whittenhall,   3   Hill, 

576,  24.  32,  60 

Shaver    v.  White,  6  Munford, 

(Va.)  110,  93 

Shaw  V.  Becket,  7  Gush.  442,  132 
bluuv  V.  Cosier,  8  Paige,  (N.  Y.) 

339.  148 

Shaw  «.  HofTman,  21  Mich.  155,  364 
Shaw  V.  Levy,  17  S.  &  R.  (Pa.) 

99,  141,  145 

Shaw  V.  Tobias,  3  Comst.  (N.Y.) 

188,        236,  242,  244,  247,  248,  249 
Shearick  v.  Huber,  6  Biun.  (Pa.) 

2,  22,  23,  65,  76,  138,  173 

Sheldon  v.  Robinson,  7  N.  H. 

157,  213 

Sheldon     v.    Van    Buskirk,    3 

Comst.  (K  Y.)  473,  129 

Shell  V.  Haywood,  16  Pa.  St.  523,  46 
Sheltoa  v.  Berry,  19  Tex.  154, 

357,  428 
Shepard«.Butterfield,  41 111.76.  332 
Shepherd  v.  Johnson,  2  East. 

211,  295,  298,  321 

Sherry  v.  Foresman,  6  Blackf. 

56,  248,  249,  250 

Shipman  v.  Clark,  4  Deuio,  446, 

144,  146,  148 
Shoemakeru. Simpson,  16  Kan. 

43,  198 


PAGES. 

Shomo  V.  Caldwell,  31  Ala.  448, 

67,  68,  368 
Shorey  v.  Hussey,  32  Me.  579,  168 
Short  V.  Barker,  22  Ind.  148,  175 
Shufeldt  V.  Pease,  16  Wis.  659,  189 
Shumway  v.  Rutter,  8  Pick.  443  209 
Shuter  v.  Page,  11  Johns.  196, 

373,  376,  385 
Silsbury  v.  McCoon,  3  Comst. 

379,  118, 337 

Silsbury  v.   McCoon,  4  Denio, 

332,  119,  148 

Silsbury  v.  McCoon,  6  Hill,  (N. 

Y.)425,  119,337 

Simcoke  v.  Frederick,  1  Ind.  54, 

68,  256,  396,  428 
Simmonds  v.  Swift,  5  B.  «&  C. 

857,  103 

Simmons  v.  Brown,  5  R.  I.  299,    342 
Simmons  v.  Jenkins,  76  111.  479, 

110,  122,  386,  387 
Simmons  v.  Lettystone,  4  Exch. 

442,  201 

Simmons  v.  Lyons,  3  Jones  & 

Spencer,  (N.  Y.)  554,  306 

Simonds  v.  Parker.  1  Met.  508, 

230,  242 
Simpson  v.  M'Farland,  18  Pick. 
427,  27(1,  274,  276, 277, 

373,  384,  385,  395 
Simpson  v.  Perry,  9  Geo.  508, 

409,  418 
Simpson  v.  Wrenn,  50  111.  323, 

64,  203,  212 
Sims  V.  Boynton,  32  Ala.  354,  379 
Sims  V.  Glazener,  14  Ala  695,  109 
Sims  V.  Reed,  12  B.  Mon.  (Ky.) 

51,  139,  150 

Single  V.  Barnard.  29  Wis.  403, 

407,  412 
Single  V.  Schneider,  34  Wis.  299,  336 
Single  V.  Schneider,  30  Wis.  570,  117 
Sippora  v.  Basset,  1  Sid.  225,  312 
Six  Carpenters'  Case,  8  Coke  R. 

146,  393 

Six  Carpenters'  Case,  1  Smith's 
Lead.  Cases,  63,  393 


TABLE   OF    CASES   CITED. 


Ixxiii 


PAGES. 

Sketoe  v.  Ellis,  14  111.  75,  393 

Skidmore  v.  Taylor,  29  Cal.  619, 

41,  99 
Skinner  v.  Chicago,  etc.,  R.  R., 

12  Iowa,  191,  63 

Skinner  v.  Stouse,  4  Mo.  93, 

60,  66,  85,  205 
Skipp  V.   Harwood,  2  Svvanst. 

5S6,  93 

Slack  V.  Brown.  13  Wend.  390,  311 
Slayton  v.  Russell,  30  Geo.  127,  23 
Sleeper  v.  Osgood,  50  N.  H.  331,  366 
Slocura  V.  Mayberry,  2  Wheat.  2, 

156,  157 
Sluyter  ♦;.  Williams,  1  Sweeny, 

(K  Y.)  215,  197 

Small  V.  Hutchius,  19  Me.  255,  79,  81 
Smith  V.  Archer,  53  111.  241,  202 
Smith  V.  Aurand,  10  S.  &  R.  (Pa.) 

93,  269,  274,  398 

Smith  V.  Barse,  2  Hill.  387,  426 

Smith  V.  Benson.  1  Hill,  (N.  Y.) 

176,  43 

Smith  V.  Clark,  4  Durnf.  &  E. 

476,  351 

Smith  V.  Colson,  10  Johns.  91, 

393,  397 
Smith  V.  Coolbaugh,   19  Wis. 

106,  415 

Smith  V.  Crockett,  Minor,  (Ala.) 

277,  25 

Smith  n.  Dennie,  6  Pick.  263, 

183,  193 
Smith  V.  Doty,  24  111.  163,  188 

Smith  V.  Emerson,  15  Ind.  355, 

358,  363,  387 
Smith  V.  Field,  5  Term  R.  311, 

403,  187 

Smith  V.  Fyler,  2  Hill,  (N.  Y.) 

618,  393,  397 

Smith  V.  Goodwin,  2  Me.  173,  55,  56 
Smith  V.  Graves,  35  Ark.  458, 

67,  68,  177,  368 
Smith  V.  Griffith,  3  Hill,  333, 

H03,  309 
Smith  V.  Houston,  35  Ark.  183, 

24,  391,  406 


PAGES. 

Smith  V.  Howard,  23  Ark.  303, 

229,  438 
Smith  V.  Huntington,  3  N.  H. 

76,  33 

Smith  V.  Lisher,  33  Ind.  500,  248 
Smith  V.  Lydick,  43  Mo.  209,  67 

Smith  V.  Lynes,  1  Seld.  (N.  Y.) 

41,  191,  193 

Smith  V.  McFall,  18  Wend.  521, 

165,  231,  323,  333,  339 
Smith  V.  McGregor,  10  Ohio  St. 

461,  360,  365.  368,  375 

Smith  V.  McLean,  24  Iowa,  322, 

38,  98  123,  197.  213,  357,  367 
Smith  V.  Montgomery,  5  Iowa, 

370,  33,  146,  355,  369 

Smith  V.  Moore,  11  N.  H.  55,  55 
Smith  V.  Morrill.  56  Me.  566.  109 
Smith  V.  Orser,  43  Barb.  187,  66,  81 
Smith  V.  Phelps.  7  Wis.  311,  404 
Smith  V.  Plomer,  15  East.  607,  59,  63 
Smith  V.  Pries,  31  111.  656.  335,  236 
Smith  V.  Roby,  6  Heisk.  (Tenn.) 

546,  340,  344 

Smith  V.  Sanborn,  6  Gray,  134,  95 
Smith     V.    Sherman,    4    Cush. 

(Mass.)  408,  313 

Smith  V.  Sherwood,  3  Tex.  460,  313 
Smith  V.  Snyder,  15  Wend.  334, 

145,  370,  386,  390,  384,  385 
Smith  V.  Trawl,  1  Root,  (Conn.) 

165,  333 

Smith  V.  Welch,  10  Wis.  91,  197 
Smith  V.  Whiting,  97  Mass.  316, 

323,  235,  237 
Smith  V.  Whiting,  100  Mass.  133,  391 
Smith  7).  Williamson,  1  Har.  & 

J.  (Md.)  147,    38,  64,  315,  351,  375 
Smith  V.  Winston,  10  Mo.  399, 

173,  286 
Smith  V.  Wood,  31  Md.  293, 

347,  353,  404 
Smith  V.  Young,  1  Campb.  440,  213 
Snedeker    v.    Quick,    6    Ilalst. 

(N.  J.)  179,  95,  257,  369 

Snelgar  v.  Hewston,  Cro.  Jac. 
611,  269 


Ixxi7 


TABLE    OF    CASES    CITED. 


PAGES. 

Snow  V.  Como,  Str.  Rep.  507,  386 
Snow  V.  Roy,  22  Wend.  603, 

84,  258,  378 
Snyder  v.  Vaux,  2  Rawle,  (Pa.) 

423,         22,  41,  48,  51,  95,  116,  119 
Soaines  v.  Watts,  1  C.  &  Payne, 

400,  207 

Solomons  i\  Dawes,  1  Esp.  83. 

214,  215 
Somes  V.  Brewer,  2  Pick.  184,  191 
Sopris  V.  Lilley,  2  Col.  496, 

231,  233,  235,  239,  252,  332 
Sopris  V.  Truax,  1  Col.  89,  197 

Southall  v.  Garner,    2    Leigh. 

(Va.)  372,  354 

Southcote  V  Bennett,  Cro.  Eliz. 

815,  83 

Southern    Plank    Road   Co.  v. 

Hixon,  5  Ind.  165,  41 

Southwick  V.  Smith,  29  Me.  229.  66 
Sparks  v.  Heritage,  45  Ind.  66,  271 
Speer  v.  Skinner,  35  111.  282, 

224,  259,  261,  264,  401 
Spencer  v.  Blackman,  9  Wend. 

167,  206 

Spencer  v.  Dickerson,  15  Ind. 

368,  230 

Spencer  v.  M'Gowen,  13  Wend. 

256,  36,  139,  148,  398 

Spicer  v.  Waters,  65  Barb.  227,  298 
Spoor  V.  Holland,  8  Wend.  445,  3^7 
Sprague    v.    Birchard,    1  Wis. 

457,  162 

Sprague  v.  Clark,  41  Vt.  6, 

22,  23,  26,  60,  68,  358,  365 
Sprague  v.  Kneeland,  12  Wend. 

161.  405 

Spraights  v.  Hawley,  39  N.  Y. 


441, 

177, 

205 

Spring    V. 

Bourland, 

6 

Eng. 

(Ark.)  658, 

139, 

144 

Sproule  V. 

Ford, 

3  Litt. 

(Ky.) 

26, 

298 

Squires  v. 

Smith 

10 

B. 

Mon. 

(Ky.)  33, 

7 

9,  139, 

205 

Stacy  V.  Farnham,  2  How.  Pr. 
Rep.  26,  356 


PA0E3. 

Stanehfield    v.    Palmer.    4    G. 

Green,  (Iowa,)  23, 

95,  196,  197,  199,  206,  207 
Stanley  v.  Gaylord,  1  Cush.  536, 

32,  69,  177,  197,  207,  369 
Stansfeld  v.  Hellawell,  11  E.  L. 

&  Eq.  559,  228 

Stanton  v.  Hodges,  6  Vt.  61,  168 
Stapleford  v.  White,   1  Houst. 

(Del.)  238,  59,  197 

Starky  v.  Kelly,  50  N.  Y.  676,  300 
State  v.  Barrels  of  Liquors,  47 

N.  H.  369,  143 

State  V.  Boisliniere,  40  Mo.  556,  222 
State  ■».  Jennings,  14  Ohio  St. 

73,  149,  167,  20S 

State  v.  McCann,  19  Mo.  249,  70 
State  V.  Smith,  1  N.  H.  346.  163 

State  ®.  Stephens,  14  Ark.  264, 

222,  223,  227 
State  of   California    v.    Wells, 

Fargo  &  Co.,  15  Cal.  336,  191 

State  V.  Williams,  5  Wis.  308,  164 
S'carns  v.  Raymond,  26  Wis.  74,  114 
Stedman  v.  Bates,  1  Ld.  Raym. 

64,  395,  398 

Steele  v.  Thompson,  8  Penn.  34,  397 
Stephens  v.  Frazier,  'i  B.  Mon. 

(Ky.)  250,  171 

Stephens  v.  Santee,  4Q  N.  Y.  35,  102 
Stephens  v.  Scott,  13  Ind.  515, 

409,  410 
Stephenson  v.  Hart,  4  Bing.  476,  182 
Stephenson  v.  Little,  10  Mich. 

433,  111 

Stevens  v.  Eno,  10  Barb.  95,  74,  102 
Stevens  v.  Cunningham,  3  Allen, 

(Mass.)  491,  180 

Stevens  v.  McClure,  53  Ind.  384,  292 
Stevens  v.  Osman,  1  Mich.  92, 

95,  96,  97,  369 
Stevens  v.  Tuite,  104  Mass.  328, 

24,  252,  259,  260.  284,  289,  295 
Stevenson  v.  Miller,  2  Litt.  R. 

(Ky.)  307,  223 

Stevenson  v.  Smith,  28  Cal.  101. 

312,  371 


TABLE   OF    CASES   CITED. 


Ixxv 


PAGES. 

Stevison  v.  Eai-aest,  80  111.  513, 

233,  246,  369 
Stewart  v.  Drake,  46  N.  Y.  449,  301 
Stewart  v.  Wells,  6  Barb.  79, 

38,  146 
Stickney  c.  Smith,  5  Minn.  48'5, 

366,  368 
Stiles  V.  Griffith,  3  Yeates,  (Pa.) 

82,  125,  133 

Stillman  v.  Squire,  1  Denio,  327, 

167,  168,  197,  199,  356 
Stimpson  v.  Reynolds,  14  Barb. 

506,  144,  148,  149 

Stirason  v.  Farnham,  1  Moak's 

(English,)  60,  327 

Stockwell  V.  Byrne,  22  Ind.  6, 

238,  248 
Stockwell  V.  Phelps,  34  N.  Y. 

363,  32,  54 

Stockwell  V.  Veitch,  15  Abb.  Pr. 

412,  130 

Stoddard  v.  Gilman,  22  Vt.  5C8, 

125,  134 
Stoltz  V.  The  People,  4  Scam. 

(111.)  168,  407 

Stone  V.  Bird,  16  Kan.  488,  139 

Storm  V.  Livingston,  6  Johns. 

44,  '        82,  210,  213,  216 

Story  v.  O'Dea,  23  Ind.  326,  235 

Story  V.  Robinson,  6  Term  R. 

73,  139,  84 

Stoughton  V.  Rappalo,  3  S.  &  R. 

(Pa.)  5.")9,  22,  23,  65 

Stow  v.  Yarwood,  14  111.  424,       343 
Stowell    V.    Lincoln,   11    Gray, 

434,  291 

Stowell  V.  Otis,  71  N.  Y.  36,  378,  379 
Stowell  V.  Pike,  2  Green.  (Me.) 

387,  56 

Strang  v.  Whitehead,  12  Wend. 

64,  312,  316 

Strasburger  v.  Barber,  38  Md. 

103,  340 

Stratton  v.  Allen,  7  Minn.  502,      197 
Straus  V.  Ross,  25  Ind.  300,  106 

Streeter  v.  Streeter,  43  111.  155, 

343,  344,  400 


PAGES. 

Strong  V.  Daniel,  5  Ind.  348,        242 
Strong  V.  Keene,  13  Irish  L.  R. 

13,  291 

Studdert  v.  Hassell,  6  Humph. 

(Tenn.)  137,  267,  420 

Sudbury  v.  Stearns,  21  Pick.  148, 

41,348 
Suggett's  Admr.  v.   Cason,   23 

Mo.  221,  102,  104 

Sullivan  v.  Stephenson,  62  111. 

290,  143 

Summers  v.  Parker,  Taylor's  N. 

C.  Terra  Rep.  147,  245 

Summons  v.  Austin,  36  Mo.  307, 

61,  67,  69 
Sunbolf  V.  Alford,  8  Mees  &  W. 

248,  73,  84,  163 

Supervisors,  etc.  v.  Mann^',  56 

111.  160,  132 

Susquehanna  v.  Finney,  58  Pa. 

St.  200.  101 

Sutclitfe  V.  Dohrman,  18  Ohio, 

181,  325,  327 

Sutro  V.  Hoile,  2  Neb.  186,    103,  194 
Suydam  v,  Jenkins,  3  Sandf.  (N. 

Y.)  614,  289,  295,  309,  329,  341,  342 
Swain  v.  Roys,  4  Wis.  150,  292,  409 
Swann  v.  Shemwell,  2  Har.  &  G. 

(Md.)  283,  15,  257 

Sweetzer  v.  Mead,  5  Mich.  107,    413 
Swift  V.  Barnes,  16  Pick.  194, 

300,.308,  310,  311 
Swift  V.  Crocker,  21  Pick.  241,    425 


T. 


Tabor  v.  Hutson,  5  Ind.  323,  338 
Talbot  V.  De  Forest,  3  G.  Gr. 

(Iowa,)  586,  122,  141 

Talmadge  v.  Scudder,  38  Pa.  St. 

517,  203 

Tamplin  v.  Addy,  8  Cow.  239,  183 
Tannahill  ?).  Tuttle,  3  Mich.  110,  123 
Tardy  v.  Howard,  12  Ind.  404,  411 
Tarpey  v.  Shillenberger,  10  Cal. 

390,  238 


Ixxvi 


TABLE    OF    CASES   CITED. 


PAGES. 

Tarpy  v.  Shepherd,  30  Cal.  181,  306 
Tatum  V.  Sharpless,  6  Phil.  (Pa.) 

18,  70 

Taylor  v.   Carryl,  20  Howard, 

(U.  S.)  584,  153,  274 

Taylor  v.   Hathaway,  29  Ark. 

597,  403 

Taylor  v.  Ketchum,  35  How.  Pr. 

(N.  Y.)  289,  306 

Taylor  v.  Ketchum,  5  Robt.  (N. 

Y.)  507,  306 

Taylor  v.  Moore,  3  Har.  (Del.)  6,  397 
Taylor  v.  Morgan,  3  Watts,  (Pa.) 

333,  292,  337 

Taylor  v.  Riddle,  35  111.  567, 

101,  361,  369 
Taylor  v,  Seymour,  6  Cal.  512,  209 
Taylor  v.  Trask,  7  Cow.  249,  36 

Taylor  v.  Welbey,  36  Wis.  42,  36 
Taylor  v.  Wells,  1  Mod.  46.  97 

Taylor  v.  Wells.  2  Saund.  74  b,  281 
Teall  V.  VanWyck,  10  Barb.  377,  243 
Tell  v.  Beyer,  38  N.  Y.  161,  89 

Templeman's  Case,  10  Mod.  25,  62 
Terry  ».  Allis.  16  Wis.  478,  305 

Terry  v.  Allis,  20  Wis.  32,  305 

Terwillinger    v.    Wheeler,    35 

Barb.  620,  168 

Thatcher  v.  Harlan,  2  Houst. 

(Del.)  194.  215 

Thayer  v.   Hutchinson,  13  Vt. 

504,  369,  375 

Thayer  v.  Turner,  8  Met.  550, 

185,  188 
The  Brig  Sarah,  etc.,  2  Sumner, 

(U.  S.  C.  C.)  206,  350 

The  Ordinary  v.  Smith,  2  Gr.  (14 

N.  J.  L.)  478,  232 

The  People  v.  Schuyler,  4  Comst. 

173,  168 

The     Six     Carpenters'     Case, 

Smithe's  Lead.  Cases,  vol.  1st, 

63,  168 

Thimblethorp's  Case,  Bulst.  pt. 

2,  310,  34 

Thomas  v.  Abbot,  Y.  B.  30.  31 

E.  I.  p.  18,  8,  15 


PAGBS. 

Thomas  v.  Crofut,  14  N.  Y.  474,  55 
Thomas  v.  Spofford,  46  Me.  408, 

221,  226,  251,  311 
Thomas  v.   Wilson,   6    Blackf. 

(Ind.)  203,  250 

Thome  v.  Colton,  27  Iowa,  425,  111 
Thompson  v.  Blanchard,  4  N. 

Y.  303,  85 

Thompson  v.  Button,  14  Johns. 

84,  59,  141,  403 

Thompson  Ex   parte,   15  Am. 

Law  Reg.  522,  147,  148 

Thompson  v.  Lacy,  3  Barn.  «& 

Aid.  283,  73 

Thompson  v.  Mashiter,  1  Bing. 

283,  394 

Thompson  v.  Shirley,  1  Esp.  N. 

P  C.  31,  196,  21S 

Thompson  v.  Sweetser,  43  Ind. 

312,  376,  377 

Thompson  v.  Trail,  6  B.  &  C.  36,  215 
Thorp  ©.Burling,  11  Johns.  285,  206 
Thorp  V.  Starr,  17  111.  199,  426 

Thurber  «.   Richmond,  46  Vt. 

395,  278, 287 

Thurston  v.  Blanchard,  23  Pick. 

18,  183,  188,  197,  207 

Tibbal  v.  Cahoon,  10  Watts.  232,  27 
Tice  V.  Norton,  4  Wend.  663,  397 
Tifft  V.  Tifft,  4  Denio,  175,  351 

Tifft  V.   Verden,   11    S.  «fc    M. 

(Miss.)  153,  27 

Timp  V.  Dockham,  32  Wis.  146, 

80,  274,  383,  888,  405 
Tison's  Admr.  v.  Bowden,  8  Fla. 

69,  66,  139.  368 

Tilcomb.  v.  Wood,  38  Me.  561, 

177,  182,  184 
Titus  V.  Mabee,  25  111.  257,  122 

Tolesw.  Cole.  11  111.  562,  253 

Tome  V.  Dubois,  6  Wall.  (U.  S.) 

548,  350 

Tomlin  v.  Fisher,  27  Mich.  525.  27 
Tomlinson  v.  Collins,  20  Conn. 

365.  66 

Tompkins  v.  Haile,  3  Wend.  406,  69 
Tousey  v.  Bishop,  22  Iowa,  187,  243 


TABLE    OF    CASES   CITED. 


Ixxvii 


PAGES. 

Town  V.  Evans,  1  Eng.  (Ark) 

260,  23,  27 

Town  V.  Wilson,  8  Ark.  464, 

355,  356,  359,  426 
Towns  V.   Boarman,   23    Miss. 

186,  392 

Towns  V.  Wilcox,  12  Wend.  503,  426 
Townsend  v.  Bargy,  57   N.  Y. 

065,  321 

Tracy  v.  Swartwout,  10  Peters, 

81,  293 

Trapnall    v.    Hattier,    1    Eng. 

(Aj-k.)  18.  30,  183,  190,  208 

Travers  v.  Inslee,  19  Mich.  100, 

21,  27,  130 
Treadwell  v.  Brown,  43  N.  H. 

290.  93 

Trevilian  v.  Pyne,  1  Salk.  107.  401 
Trieber  v.  Knabe,  13  Md.  149,  393 
Trimble  v.  State,  4  Blackf.  435,  251 
Tripp  V.  Howe,  45  Vt.  523, 

234,  230,  358 
Tripp  V.  Lei  and,  43  Vt.  487,  82 

Tripp  V.  Riley,  15  Barb.  333. 

93,  111,  113 
Trotter  v.  Taylor,  5  Blackf.  431, 

270,  384 
Troy  &  Lansing  R.  R.  Co.  v. 

Kane,  72  N.  Y.  614,  125 

Trudo  V.  Anderson,   10  Mich. 

357,  178,  180,  197,  207 

Truitt  V.  Revill,  4  Har.  (Del.) 

71,  38, 171 

Trulock  V.  Rigsby,  Yelv.  185,  396 
Tuck  «.  Moses.  54  Me.  115,  227 

Tuck  V.  Moses,  53  Me.  461. 

224,  228,  230,  350,  251,  269,  310 
Tuley  V.    Mauzey,  4  B.  Mon. 

(Ky.)  5,  273 

Tullcy  V.  Harloe,  35  Cal.  302,  370 
Tullis  V.  Orthwein,  5  Minn.  377,  151 
Tully  V.  Fairly,  51  Ind.  311,  193 

Tummons  v.  Ogle,  37  E.  L.  & 

Eq.  15.  233 

Turner  B.Retter.  58  111.264,  305,344 
Turnor  v.  Turner,  2  Brod.  & 

&  Biug.  107,  233,  233 


PAGES. 

Turrill  v.  Crawley,  13  Ad.  &  El. 

197  73 

Tuthill  «.  Wheeler,  6  Barb.  362,  60 
Tuttle  V.  Cook,  15  Wend.  274,  168 
Tuttle  V.  Cooper,  10  Pick.  281,  250 
Tuttle  V.  Robinsoi^  78  111.  332,  209 
Twells  V.  Coldville,  Willes,  375,  224 
Twinam  v.  Swart,  4  Lans.  263, 

151,  295,  319,  320 
Tyler  v.  Freeman,  3  Cush.  261,  76 
Tyler  v.  Strang,  21  Barb.  198,  103 
Tyus  V.  Rust,  34  Geo.  382,        63,  72 


TJ. 

Underbill  v.  Reinor,  3  Hill.  (N. 

Y.)  319,  147 

"Underwood  v.  White,  45  111.  437, 

271,  272,  384.  408 
Union  Lumber  Co.  v.  Tronson, 

36  Wis.  136,  169 

United  States  v.  Brown,  Gilpin, 

C.  C.  155,  233 

United   States  v.   Buchanan,  8 

How.  83,  83 

Updike  V.  Henry,  14  111.  378,  75,  103 
Usry  V.  Rainwater,  40  Geo.  328,    91 


V. 

Vaiden    v.    Bell,   3  Randolph. 

(Va.)  448,  25,  33 

Vail  V.  Lewis,  4  Johns.  450,  161 

Valentine  v.  Jackson,  9  Wend. 

303.  397 

Van    Buskirk    v.    Purinton.  2 

Hall,  (N.  Y.)  560,  180 

Van  Cleef  v.  Fleet,  15  Johns. 

147,  183 

Vandenburgh  v.  Van   Valken- 

burgh,  8  Barb.  317.  3G5,  366,  367 
Vanderbilt  v.  Richmond  Co.,  3 

Comst.  479.  168 

Vanderburgh  v.  Bassett,  4  Minn. 

343,  33 


Ixxviii 


TABLE   OF    CASES   CITED. 


PAGES. 

Vanderslice  v.  Newton,  4  Comst. 

(N.  Y.)  130,  312 

Van  Duyne  v.  Coope,  1  Hill,  (N. 

Y.)  557,  243,  248 

Van  Namee  v.  Bradley,  69  111, 

299,  67,  171,  273,  374,  376,  379, 384 
Van  Neste  v.  Conover,  20  Barb. 

547,  83 

Van  Pelt  v.  McGraw,  4  Comst. 

(N.Y.)llO,  55,56 

Van  Valkenburgh  v.  Thayer,  57 

Barb.  196,  202 

Van   Winkle  v.  Udall.   1  Hill. 

559,  166 

Vaughn  v.  Norris,  Ca.  t.  H.  137, 

232,  234 
Vausse  v.  Ilussel,  2  McCord,  (S. 

C.)  329.  40,  43,  51 

Vennum  v.  Thompson,  38  111. 

143,  98 

Ventress  v.  Smith,  10  Pet.  161,  175 
Vernon  v.  Wyman,  1  H.  Bla.  24,  274 
Vickeryy.  Sherburne,  20  Me.  35,  384 
V.  &  M.  R.  R.  Co.  V.  Ragsdale, 

46  Miss.  458,  865 

Vocht  V.  Reed,  70  111.  491,  124,  131 
Vogle  «.   Badcock,  1  Abb.  Pr. 

(N.  Y.)  176,  867 

Vogle  In  re,  1  Blatchf.  19,  140 

Vollum  V.  Simpson,  2  Bos.  & 

Pull.  368,  285 

Voorhees  ».  Earl,  2  Hill.  288,  188 
Voorhis  v.  Freeman,  2  Watts. 

&  Serg,  116,  46 

Vose  V.  Hart,  12  111.  878,  270. 272,  384 
Vose  V.  Stickney.  8  Minn.  75,  209 
Vroom  «.  Exrs.  of  Smith,  2  Gr. 

(14  N.  J.  L.)  478,  232 

W. 

Waddy  Thompson,  Ex  parte, 
15  Am.  Law  Reg.  522,        147,  148 

Wade  V.  Mason,  12  Gray,  (Mass.) 
335,  59,  66 

Wakeman  v.  Lindsay,  19  L.  J. 
Q.  B.  1G6,  418 


PAGES. 

Walbridge  v.  Shaw,  7  Gush.  500, 

235,  273,  278.  420 
Walcot  V.  Pomeroy,  2  Pick.  121,  65 
Waldman  v.  Broder,  10  Cal.  379, 

92,  207,  272,  375 
Walker  ?).  Fenner,  20  Ala.  192.  83. 203 
Walker  v.  Fenner,  28  Ala.  367  87,  88 
Walker  v.  Hampton,  8  Ala.  412,  168 
Walker  v.  Hunter,  5  Cranch  C. 

Ct.  462,  409 

Walker  ».  Smith,  1  Wash.  C.  C. 

152,  338 

Wallace  v.  Brown,  17  Ark.  449, 

83,  66,  72 
Wallace  v.  Brown,  5  Foster,  (N. 

H.)  216.  418 

Wallace  v.  Clark,  7  Blackf.  298, 

248.  254,  278.  419 
Wallace  v.  Hilliard,  7  Wis.  627, 

403,  404,  411 
Wallis  v.  Savil,  Lutw.  16.  378 

Wallis  v.  Savill,  2  Lutw.  493,       304 
Walls  «.  Johnson,  16  Ind.  374, 

253,  296 
Walpole    V.   Smith,  4    Blackf. 

(Ind.)  304,  32.  60,  75,  197,  272. 

275,  377,  383.  388,  405 
Walsh  V.  Adams,  3  Deuio,  125,  93 
Waltinan  v.  Allison,  10  Pa.  St. 

465,  896 

Waples  V.  Adkins.  Admr.  of  Mc- 

llvaine.  5  Har.  (Del.)  381,  220 

Ward  V.  Myve,  2  Bulst.  3 .3,  109 

Ward  v.  Henry,  19  Wis.  76,  156 

Ward  n.  Macauley,  4  Term  Rep. 

260  and  488,  33 

Ward  V.  Masterson,  10  Kan.  77, 

370.407,411.415 
Ward«.  Smith,  8  Ired.  (N.C.)  296,  101 
Ward  V.  Taylor,  1  Pa.  St.  238,  76 
Ward  V.  Woodburn,  27  Barb. 

346,  83 

Wardrobe  v.  Calif.  Stage  Co.,  7 

Cal.  118,  340 

Ware  v.  Percival,  61  Me.  391,       132 
Warner  v.  Aughenbaugh,  15  S. 

&  R.  (Pa.)  9,  97,  102 


TABLE   OF   CASES   CITED. 


Ixxix 


PAGES. 

Warner  v.  Caulk,  3  Whart.  (Pa.) 

193,  343 

Warner  v.  Cusliman,  31  111.  283,  113 
Warner  «.  Hunt,  30  Wis.  200. 

66,  321,  406,  425 
Warner  v.  Matthews,  18  111.  83, 

32,  63,  247,  249,  273,  294.  384.  419 
Warner  v.  Sauk.  Co.  Bank,  20 

Wis.  493,  99 

Warren  v.  Cole,  15  Mich.  265, 

316,  337,  339 
Warren  v.  Leland,  9  Mass.  265. 

66,  352,  369 
Washington  Ice  Co.  v.  Webster, 
63  Me,  341,  268,  291.  299,  303, 

311,  316,  332 
Waterbury  t).  Westervelt,  5  Seld. 

(N.  Y.)  598,  325 

Waterman  &  Wife  v.  Matteson, 

1  Ames,  (4  R.  I.)  539,  56,  78 

Waterman  v.  Robinson,  5  Mass. 

303,  33,  59,  65 

Watkins  v.  Baird,  6  Mass.  506,  186 
Watkins  v.  Page,  2  Wis.  92, 

138,  145,  148,  359 
Watson  v.  McGuire,  33  How.  Pr. 

R.  87.  78 

Watson  V.  Todd,  5  Mass.  271,  139 
Watson  V.  Watson,  9  Conn.  140, 

25,  33,  170 
Watson  V.  Watson,  10  Conn.  75,  25 
Watt  V.  Potter,  3  Mason,  (C.  Ct.) 

77,  314,  315 

Watts  V.  Green,  30  Ind.  98,  411 

Waugh  V.  Bussel,  5  Taunt.  707,  244 
Way  0.  Barnard,  36  Vt  366, 

85,  235,  268 
Weathersby  v.  Sleeper,  43  Miss. 

733,  49,  223 

Weaver  v.  Darby,  43  Barb.  411,  331 
Weaver  v.  Field,  1  Blackf.  335,  343 
Weaver  v.   Lawrence,   1    Dall, 

(Pa.)  156,  6,  8,  15,  23,  26,  37 

Webb  V.  Fox,  7  Term  R.  393,  334, 

65,  365 
Webber  v.  Davis,  44  Me.  147, 

349,  350 


7AQB9. 

Webber  v.  Shearman,  6  Hill,  (N. 

Y.)  30,  399,  401 

Webber  v.  Underbill,  19  Wend. 

447,  439 

Weber  v.  Henry,  16  Mich.  399,  156 
AVeed  v.  Hiuton,  7  Hill,  157,  164 
Weed  V.  Page,  7  Wis.  503,  183,  188 
Weeks  v.  Peach,  1  Ld.  Raym. 

679,  396 

Weeks  v.  Peach,  1  Salk.  179.  396 
Weidel  v.  Roseberry,  13  S.  &  R. 

178,  398 

Weil    V.   Silverstone,    6    Bush. 

(Ky.)  698,  111 

Weinberg  v.   Conover,  4  Wis. 

803,  148,  169 

Weizen  v.  McKinuey,   3  Wis. 

388,  418 

Welch  V.  Durand,  36  Conn.  183,  315 
Welch  V.  Sackett,  13  Wis.  243,  123 
Welch  V.  Smith,  45  Cal.  230,  95,  357 
Weld  V.  Hadley,  1  K  H.  295,  369 
Welker  v.    Wolverkuchler,    49 

Mo.  35,  183,  187 

Wells  V.  Abraham,  L.  R.  7  Q.  B. 

554,  175 

Wells  V.  Banister,  4  Mass.  514,  43 
Wells  V.  Hornish,  3  Pen.  &  W. 

(Pa.)  30,  397 

Wells  V.  Johnson,  16  Barb.  375,  370 
Wells  V.  Lane,  15  Wend.  99,  436 
Wells  V.  McClenning,  23  111.  409,  388 
Wemple  v.  Stewart,  23  Barb.  154,  30& 
West  V.  Weutworth,  3  Cow.  (N. 

Y.)  83,  303,  343 

Westcott  V.  Bock,  3  Col.  335,  419 
Westenberger    v.    Wheaton,    8 

Kan.  169,  361 

Wetherbee  v.  Green,  33  Mich. 

311,  117,  118 

Wetherell  v.  Spencer,  3  Mich. 

123,  87 

Weymouth  v.  C.  &  N,  W,  Ry. 

Co.,  17  Wis.  550,  117 

Whaling  v.  Shales,  SO   Wend. 

673,  232,  229,  428 

Wheadon  v.  Sugg,  Cro.  Jac.  373,  396 


Ixxx 


TABLE   OF    CASES    CITED. 


PAGES. 

Wheat  V.  Catterlin,  23  Ind.  85, 

408,  410,  428 
Wheeler®.  McCorristen,  24  111.  43,  171 
Wheeler  v.  M'Farland,  10  Wend. 

318,  30,  32,  37,  38,  60,  67 

Wheeler  v.  Train,  3  Pick.  255,  60,  62 
Wheeler  v.  Train,  4  Pick.  168, 

24,  269,  274,  276 
Wheeler  v.  Wilkins,  19  Mich. 

78,  224, 416 

Wheelock  v.  Cozzens,  6  How. 

(Miss)  279.  25,  33 

Whisler  v.  Roberts,  19  111.  274,  357 
Whitaker  v.  Freeman,  1   Dev. 

(N.  C.)  271,  383 

Whitaker  v.  Wheeler,  44    111. 

440,  152,  324 

Whitcomb  v.  Hungerford,    43 

Barb.  177,  74 

Wliite  V.  Brown,  5  Lans.  (N.  Y.) 

78,  197 

White  V.  Demary,  2  N.  H.  546,  213 
White  V.  DoUiver,  113  Mass.  400, 

261,  263,  346 
White  V.  Gainer,  2  Bing.  23,  215 
White  V.  Jones,  38  111.  159, 

93,  141,  407 
White  V.  Lloyd,  3  Blackf.  390, 

373,  375 
White  V.  Moseley,  8  Pick.  356,  313 
White  V.  Phelps,  12  N.  H.  382,  133 
White  V.  Ross,  5  Stewart  &  P. 

(Ala.)  123,  329 

White  V.  Spettigue,  1    Car.  & 

Ker.  673,  174 

White  V.  Spettigue,  13  M.  &  W. 

608,  176 

White  V.  Suttle,  1  Swan.  (Tenn.) 

168,  313 

White«.VanHouten,51Mo.577,  331 
White  V.  Webb.  15  Conn.  305,  323 
White  V.  Wilks,  5  Taunt.  176,  103 
Whitehouse  v.  Atkinson,  3  C.  & 

P.  (14  E.  C.  L.)  344,     299,  310,  324 
Whitfield  V.  Whitfield,  40  Miss. 

353,  24,  32,  285,  208, 

309,  337,  411,  41G 


PAGES. 

Whitney  v.  Burnette,  3  Wis.  621,  75 
Whitney  v.  Buttertield,  13  Cal. 

335.  166 

Whitney  v.  Jenkinson,  3  Wis. 

407,  147,  221,  222,  223 

Whitney  v.  Ladd,  10  Vt.  165,  93 

Whitney  v.  Lehmar,  26  Ind.  503,  332 
Whitney  v.  McConnell,  29  Mich. 

13,  197 

Whitney  v.   Slauson,  30  Barb. 

276,  80,  203,  210,  212 

Whitney  v.  Warner,  2  Cow.  499,  356 
Whilington  v.  Bearing,  3  J.  J. 

Marsh,  (Ky.)  684,  171 

Whitwell  V.  Wells,  24  Pick.  25, 

65,  74,  79,  210,  269,  275,  278, 
294,  330,  373,  380,  385 
Wickliffe  v.   Sanders,  6  T.  B. 

Mon.  (Ky.)  296,  31,  36 

Wiggin  V.  Day,  9  Gray,  (Mass.) 

97,  193 

Wilbraham  v.  Snow,  3  Saund. 

47,  73 

Wilbur  V.  Flood,  16  Mich.  40, 

187,  356 
Wilbur  V.  Gilmore,    31    Pick. 

250,  420 

Wilcoxon  V.  Annesley,  33  Ind. 

285,  404 

Wild  V.  Holt,  9  Mees.  &  W.  673, 

117,  118,  334 
Wilderman  v.  Sandusky,  15  111. 

59,  409 

Wildnian  v.  North,  3  Lev.  92,      377 
Wilkerson  v.  McDougal,  48  Ala. 

517,  273,  330,  378 

Wilkins  v.  Treynor,  14  Iowa, 

391,  267,  287,  418 

Willard  v.  Bridge.  4  Barb.  361,    302 
Willard  v.  Kimball,  10  Allen, 

(Mass.)  211,  144,  148,  149 

Willard  v.  Rice,  11  Met.  493,        111 
Williams  v.  Archer,  5  M.  G.  & 

S.  (57  E.  C.  L.)  318,     285,  289,  302 
Williams  v.  Beede,  15  N.  H.  483, 

285,  378,  401 
Williams  v.  Crum,  37  Ala.  468,    293 


TABLE   OF    CASES   CITED. 


Ixxxi 


PAGES. 

Williams  v.  Given,  6  Gratt.  (Va.) 
268,  182,  190 

Williams  v.  Ives,  25  Conn.  568, 

315,  343 

Williams  v.   Merle,    11  Wend. 
80,  176,  177,  189.  206,  207 

Williams  v.  Mostyn,  4  Mees.  & 
W.  145.  291,326 

Williams  v.  Phelps,  16  Wis.  80, 

284,  288,  395,  306,  319 

Williams  v.  Smith,  7  Ind.  559,  89,  90 

Williams  v.  Smith,  10  S.  &  R. 


Will 


(Pa.)  202, 


398 


ams  V.  Vail,  9  Mich.  162, 

248,  415 
Williams    v.  Welch,  5  Wend. 

290,  866,  367 

Williams  v.  West,  2  Ohio  St.  83, 

23,  61,  63,  66.  275,  284, 
321,  358,  301,  365 
Williamson  v.  Gordon,  20  N.  J. 

L.  77,  297 

Wills  «.  Barrister,  36  Vt.  220,  192 
Wills  V.  Noyes,  12  Pick.  324,  86 
Wilson  ■».  Barker,  4  B.  &  Adol. 

(24  E.  C.  L.)  614,  34,  205 

Wilson  V.  Fuller,  9  Kan.  177, 

363,  367 
Wilson  V.  Gray,  8  Watts,  (Pa.) 

25.  89,  96,  281,  378 

Wilson  V.  Macklin,  7  Neb.  50,  361 
Wilson  v.   Mathews,    24  Barb. 

295,  301,  302,  342 

Wilson  V.   McQueen,  1   Head, 

Cfenu.)  16,  141,  150 

Wilson  V.  Middleton,  2  Cal.  54,  338 
Wilson  V.  Nason,  4  Bosw.  (N.  Y.) 

155,  111,  178 

Wilson  V.  Reed,  3  Johns.  175, 

86,  347 
Wilson  «.  Royston,  2  Ark.  315, 

62.  66,  72,  368,  384 
Wilson    v.    Stripe,    4    Greene, 

(Iowa,)  551,  22,  146,  150 

Wilson  V.  Young,  31  Wis.  574,     339 
Winchester  v.  Craig.  33  Mich. 
205,  335,  336,  339 


Windsor   v.    Boyce,   1    Houst. 

(Del.)  605,        '  197,  198 

Wingate  v.  Smith,  20  Me.  287, 

111,  115,  120,  366 
Winnard  v.  Foster,  Lutw.  374,  283 
Winslow  V.  Leonard,  24  Pa.  St. 

14,  106 

Winslow  V.  Merch.  Ins.  Co.,  4 

Met.  300,  98 

Wise   V.    Withers,    3    Cranch, 

(U.  S.)  331,  161 

Wiseman  v.  Lynn,  39  Ind.  250, 

248,  251,  267 
Wiswall  V.  Sampson,  14  How.  52,  140 
Witham  v.  Witham,  57  Me.  447, 

279,  327 
Witter  V.  Fisher,  27  Iowa,  9,  413 
Wittick  V,  Traun,  27  Ala.  562,  407 
Woglara    V.   Cowperthwaite,    2 

Dall.  (Pa.)  68,  5,  15,  259,  264, 

391,  401 
Wolcottu.  Mead,  12  Met.  (Mass.) 

516.  223,  226,  227,  231,  242,  248 
Wolf  V.  Meyer,  12  Ohio  St.  432,  408 
Wolfe  V.  Dorr,  24  Me.  104,  98 

Wolfe  V.  McClure,  79  111.  564, 

238,  239,  243 
Wolgamot  V.  Bruner,  4  Har.  & 

M.  (Md.)  70,  89,  400 

Wood  '0.  Braynard,  9  Pick.  322, 

292,  295,  300 
Wood  V.  Cohen,  6  Ind.  455,  199,  207 
Wood  V.  Davis,  1  Mod.  290,  97 

Wood  V.  Dudley,  8  Vt.  430,  122 

Wood  V.  Hyatt,  4  Johns.  313.        139 
Wood  V.  Morewood,  (43  E.  C.  L.) 

3  Adolph  &  E.  440,  334 

Wood  V.   Orser,  25  N.  Y.   (11 

Smith,)  348,  63,  73,  81.  410 

Woodburn    «.    Chamberlin,   17 

Barb.  446,  270,  404,  418 

Woodburn  v.   Cogdal,  39  Mo. 

222,  ^  292,  296 

Woodcroft  V.  Kynaston.  9  Mod. 

305,  13,  14 

Woodgate  v.  Knatchbull,  2  D.  & 

East.  148,  168 


Ixxxii 


TABLE   OF   CASES   CITED. 


PAGES. 

Woodruff  V.  Cook,  25  Barb.  505, 

106,  312,  370 
Woodruff  V.  Taylor,  20  Yt.  65,  147 
Woods  V.  Nixon,  Addis.  (Pa.) 

131,  22 

Woodward  v.  Railway  Co.,  46 

N.  H.  525,  33 

Woodward  v.  Woodward,  14  111. 

466,  19S 

Wool  bridge  v.  Conner,  49  Me. 

353,  36 

Wooldridge  v.  Quinn,  49  Mo. 

425,  245 

Wright  V.  Armstrong,  Breese, 

130,  "  60 

Wright  V.  Bennett,  3  Barb.  451,  32 
Wright  V.  Briggs,  2  Hill,  77,  133 
Wright,  ^j;jOrt7-^e,  6  Cow.  399,  426 
Wright  V.  Guier,  9  Watts,  172,  52 
Wright  V.  Mathews,  2  Blackf. 

187,  270,  285,  397,  404,  417 

Wright  V.  Quirk,  105  Mass.  44, 

236,  252,  311 
Wright  V.  Williams,  2  Wend. 

632,  284.  286,  396 

Wright    V.  Williams,    5    Cow. 

338,  398 

Wyllie  V.  Wilkes,  Doug.  (Eng) 

501,  253 

Wyman  v.  Dorr,  3  Gr.  (Me.)  183, 

62,66 


y. 


Yale  V.  Seely,  15  Vt.  221,  43 

Yandle  v.  Crane,  13  Kan.  344,      303 
Yantis  v.  Burditt,  2  Dana,  (Ky.) 

254,  315 

Yarborough  v.  Harper,  25  Miss. 

112,  140 

Yater  v.  Mullen,  24  Ind.  277, 

47,  300 


Yates  V.  Fass^tt,  5  Denio,  21, 

12,  22,  24,  26,  38,  383,  388,  396 

Yates  V.  Jo^j^ce,  11  Johns.  136,  56 

Yates  «.  Russell,  17  Johns.  461,  426 

Yates  V.  St.  John,  12  Wend.  74,  75 

Year  Books  of  Edward,  1,  30 

Year  Book,  30,  31,  E.  I.  276,  2 

Year  Book,  30,  31,  E.  I.  p.  18,  15 

Year  Book,  30,  31,  E.  I.  p.  31,  18 

Year  Book,  6,  E.  IV.  11,  99 

Year  Book,  7,  H.  IV.  14,  99 

Year  Book,  6.  H.  VII.  9,  33 

Year  Book,  26,  H.  VIII.  6,  27,  99 

York  V.  Davis,  11  N.  H.  241,  22 
Yorke  v.  Grenaugh,  2  Ld.  Rayra. 

860,  180 

Youl  V.  Harboltle,  Peake,  49,  201 
Young  V.  Atwood,  5  Hun.  (N.  Y.) 

234,                                       316,  319 
Young  V.  Herdic,  55  Pa.  St.  172, 

52,  119 
Young  V.  Kimball,  23  Pa.  St. 

193,  73 

Young  V.  Lloyd,  65  Pa.  St.  199,  336 

Young  V.  Mason,  3  Gilm.  55,  240 

Young  V.  Miles,  20  Wis.  615,  114 

Young  V.  IMiles,  23  Wis.  043,  114 
Young  V.  Parsons,  2  Met.  (Ky.) 

499,  411 
Young  V.  Spencer,  10  B.  &  C. 

(21  E.  C.  L.)  145,  291 
Young  V.  Willet,  8  Bosw.  (N.  Y.) 

480,                         289,  294,  312,  371 

Young  V.  Wise,  7  Wis.  128,  162 


Z. 


Zachary  v.  Pace,  4  Eng.  (Ark.) 
212,  215 

Zaclirisson  v.  Ahman,  2  Sandf. 
(N.  Y.)  08,  199 


THE  LAW  OF  REPLEVIN. 


THE 


LAW  OF  REPLEVIN. 


CHAPTER  I. 


HISTORICAL  INTRODUCTION. 


Section. 


Origin  of  replevin  unknown    . 

First  aiDpearance  as  part  of  the 
lex  scripta 

Its  prior  existence  apparent 

The  Statute  of  Marlbridge 

Originally  an  action  to  test  the 
legality  of  a  distress 

Distress       .... 

Usually  for  rent 

Distress  could  not  be  sold 

Abuses  of  the  right  of  distress 

Replevin  defined 

The  vprit  not  returnable,  but 
gave  the  sheriff  power  to  try 
the  case    

[f  the  defendant  claimed  to  own 
the  property,  the  sheriff  could 
not  proceed      .... 

Alias  and  pluries  writs  and  the 
practice  —  pluries  always  re- 
turnable —  tlie  reason  therefor 

Cattle  driven  witliin  a  liberty  — 
the  writ  non  omittas 

The  writ  issued  only  at  West- 
minster     15 


11 


12 


13 


14 


Section. 
Delay  in  issuing  the  writ  occa- 
sioned thereby        .        .        .16 
Replevin  by  plaint.    Sheriff  au- 
thorized to  proceed  without 

writ 17 

Proceeding  in  case  of  resistance  18 
In  case  of  no  resistance  .  .  19 
Ancient  method  of  trial  .  .  20 
Both  parties  actors  or  plaintiffs  21 
Avowry  and  cognizance  ,  .  22 
These  justified  the  taking.  .  23 
Removal  of  the  case  to  the  court 

of  King's  Bench     .        .        .24 
The  writ  of  withernam,  or  "other 

distress" 25 

Defects  in  the  Statute  of  Marl- 

bridge 26 

The  statute  of  Westminster.  The 
writ  of  second  deliverance  and 
the  first   appearance  of   the 

bond 27 

Statute  Charles  11.  .  .  .  28 
Statute  George  II.  .  .  .  29 
Conclusion  .        .       .       .80 


§  1.  Origin  of  replevin  unknown.  Replevin  was  among  the 
earliest  remedies  given  bj  the  common  law.  Its  origin  ante- 
dates its  written  history  an  unknown  period,  and,  like  the  ori- 

(1) 


2  HISTOKICAL   INTRODUCTION. 

gin  of  the  common  law,  of  which  it  forms  part,  it  can  only  be 
said  to  come  from  an  age  in  which  all  our  laws  existed  simply 
in  tradition.  Glanvil,  the  earliest  writer  on  the  laws  of 
England,  gives  the  writ  as  it  was  in  his  time,  and  as  it 
must  have  existed  before.  Blackstone  speaks  of  the  action 
as  "an  institution  which  the  Mirror  ascribes  to  Glanvil." ^ 
The  passage  referred  to  by  the  learned  author  does  not 
wholly  justify  the  statement.2  It  would  seem  probable  that 
Glanvil  was  the  author  of  some  regulation  which  afterward 
took  form  in  the  statute  of  Marlbridge;  but  the  statute  was 
not  enacted  until  nearly  eighty  years  after  his  death.  Judges 
of  that  period  were  arbitrary  in  the  exercise  of  their  power, 
but  Glanvil  makes  no  claim  to  having  originated  this  action; 
he  simply  wrote  of  the  laws  as  they  then  existed. ^  The  WTit 
was  certainly  one  of  the  earliest,  and  may  have  been  in  exist- 
ence before  the  chancery  was  known."* 

§  2.  Its  first  appearance  as  part  of  the  lex  scripta.  It  makes 
its  first  appearance  as  a  part  of  the  lex  scripta  in  the  statute 

J  3  Blackstone,  146. 

2  The  full  text  of  the  Mirror  referred  to  by  Blackstone  is  as  follows:  "If 
any  be  wrongfully  distrained,  ye  are  to  distinguish  whether  it  be  by  those 
who  have  the  power  to  distrain,  or  by  others;  and  if  by  others,  then  lieth 
an  appeal  of  robbery,  whereof  Hailif  gave  a  notable  judgment;  and  if  by 
those  who  may  distrain,  then  they  ought  to  deliver  the  distress  by  gage  and 
pledges.  And  if  the  distrainer  and  the  plaintiff  of  the  distress  lead  it  away, 
then  the  connisance  thereof  doth  belong  to  the  King's  Court,  and  so  there 
is  a  remedy  by  a  writ  of  replegari  facias.  Nevertheless,  for  the  releasing 
of  such  distress,  and  for  the  hastening  of  the  right,  Rudolph  de  Glanvil 
ordained  that  sherilfs  and  hundredors  should  take  securities  to  pursue  the 
plaints,  and  should  deliver  the  distresses,  and  should  hear  and  determine 
the  plaints  of  tortious  distresses,  saving  to  the  king  the  suit  as  to  leading," 
etc.    Mirror  of  the  Justices,  Ch.  2,  §  26. 

3  He  says,  in  his  preface:  "The  laws  of  England,  though  not  written, 
may,  without  impropriety,  be  termed  laws.  *  *  *  There  are  some 
well  established  rules  which,  as  they  more  frequently  arise  in  court,  it  ap- 
pears to  me  not  to.  be  presumptuous  to  put  into  writing." 

*  See  preface  to  8th  Vol.  Coke's  Reports,  p.  17.  Herteford,  a  learned  ser- 
geant in  the  time  of  Edward  I.,  mentions  several  writs  which  he  thinks 
were  invented  before  the  chancery  was  known.  Year  Book,  30,  31,  Edward 
I.,  276.  The  chancery  was  an  office  for  issuing  writs  long  before  it  ac- 
quired jurisdiction  as  a  court.  Lives  of  the  Chancellors,  Vol.  1,  p.  2,  et  neq.; 
Story's  Eq.  Jurisp.,  Vol.  1,  Ch.  2. 


THE    ORIGIN    OF    THE    STATUTE    OF    MARLBRIDGE.  d 

of  Marlbridge,  52  Heniy  III.,  A.  D.  12G7.  The  twentj-first 
chapter  of  this  statute  is  on  tlie  subject  of  replevin,  while 
other  chapters  relate  to  the  subject  of  distress,  which,  as  will 
appear,  was  closely  allied  to  replevin  in  the  ancient  law.i 

§  3.  Its  prior  existence  apparent.  From  this  statute  it 
clearly  appears  that  prior  to  its  enactment  the  action  was  in 
general  and  frequent  use;  that  it  had  grown  into  a  well 
defined  proceeding,  with  established  forms,  rules  and  precedents 
too  strongly  fixed  to  be  disregarded  or  avoided.  It  may  also 
be  inferred  from  the  statute  that  the  defects  and  inadequacies 
in  prior  laws  were  of  such  magnitude,  and  the  inconveniences 
resulting  therefrom  were  so  general  as  to  demand  an  act  of 
Parliament  for  their  correction  at  a  time  when  acts  of  Parlia- 
ment, especially  such  as  might  operate  in  favor  of  the  tenant 
and  against  the  lord,  were  of  rare  occurrence.^ 

§  4.  The  origin  of  the  statute  of  Marlbridge.  The  contests 
which  arose  between  the  king  and  the  nobles,  called  the  wars 
of  the  barons,  and  which  came  to  a  close  in  the  reign  of  Henry 
III.,  rendered  England  a  scene  of  the  greatest  turbulence.  In 
this  conflict  the  people,  alternately  courted  by  both  parties, 
became  more  and  more  sensible  of  their  rights  and  their  impor- 
tance, and  out  of  these  influences  the  statute  of  Marlbridge, 
among  others,  came  to  be  enacted. ^ 

§  5.  Originally  it  was  an  action  to  recover  chattels  wrong- 
fully taken  or  wrongfully  detained.  T3y  the  ancient  law  re- 
plevin was  an  action  to  recover  chattels  wrongfully  taken  or 
wn'ongfuUy  detained.  "  The  substance  of  this  ])lea,"  says  Brit- 
ton,  "consists  of  two  things,  to-wit:  the  taking  and  the  de- 

'  Replevin  was  treated  of  under  the  title  of  distress,  by  all  the  old  authors. 
Britton,  Vol.  1,  Ch.  28;  Fleta,  Mirror,  Ch.  2,  §  26;  Gilbert,  in  his  work  on 
Replevin,  and  many  other  writers. 

•^  Post,  §  9,  note. 

'  DeLolme,  on  the  Constitution  of  England,  p.  155.  This  statute,  (so  called 
from  Marlborough,  in  "Wiltshire,  where  King  Henry  III.  held  a  Parliament 
in  November,  12G7,)  has  ever  been  regarded  as  one  of  the  charters  of  Eng- 
lish liberties.  Chapter  5  contains  a  re-afSrmance  of  the  first  great  charter  of 
Henry  III.;  and  the  name  Magna  Charta,  which  it  has  ever  since  retained, 
was  tirst  given  to  it  in  this  chapter.  Thompson's  Essay  on  Magna  Charta, 
p.  381.  No  official  record  of  this  statute  is  known  to  exist.  It  is  one  of 
the  ancient  statutes.    See  preface  to  Statutes  at  Large. 


4  HISTORICAL   INTRODUCmON. 

taining,  *  *  *  and  because  he  who  wrongfully  detains 
does  a  greater  injury  than  he  who  wrongfully  takes,  the  prin- 
cipal burden  of  the  answer  shall  fall  on  the  detainers." i 
There  is  nothing  in  the  writ,  even  in  its  eai-liest  form,  whicli 
would  necessarily  confine  it  to  tlie  recovery  of  distresses ;2  but 
by  the  common  law  the  action  was,  without  doubt,  prac- 
tically limited  to  the  recovery  of  distresses  wrongfully  taken 
and  detained. 3 

§  6.  Distresses.  Distress  was  the  taking  of  a  personal 
chattel  out  of  the  possession  of  an  alleged  wrong-doer,  by  the 
person  claiming  to  be  injured,  into  his  own  custody  to  compel 
satisfaction  for  the  wrong  complained  of.'*  This  taking  doubt- 
less originated  in  the  rough  exercise  of  pure  force,  for  which 
the  will  of  the  taker  was  the  sole  warrant.  The  written  history 
of  the  law  is  not  explicit  on  .this  subject,  but  enough  remains 
to  justify  tlie  belief  that  before  the  law  had  attained  vigor 
enough  to  enforce  its  mandates,  or  compel  that  respect  which 
is  yielded  to  superior  power,  rude  men  employed  their  own 
individual  force,  and  indemnified  themselves  for  any  real  or 
supposed  injury  or  default  of  another,  by  seizing  from  their 
adversary  enough  of  his  movables  to  satisfy  or  compensate 
them  for  their  supposed  loss.^  The  possession  of  sufficient 
force  being  the  only  pre-requisite  to  the  seizure,  of  course 
such  a  taking  would  be  stoutly  resisted  by  any  person  who 
deemed  himself  able  to  make  his  resistance  successful,  or  a 

'Critton,  translated  by  Nichols,  Vol.  1,  Chap.  XXVIII.;  F.  N.  B.  68, 
and  following. 

2  The  writ  given  by  Glanvil  is  almost  identical  with  the  later  writ.  See 
§  11,  note.  Wiiks.  on  Rep.  2.  Two  things  fall  in  these  plaints  of  taking 
and  detaining,  whereof  there  are  four  degrees:  1st.  When  the  taking  is 
juslifiable  for  lawful,  etc.,  and  the  detaining  also,  as  for  a  debt  due,  or  a 
debt  recovered.  2d.  Where  both  are  wrongful,  such  as  are  disavowable 
both  in  taking  and  detaining.  3d.  Where  tlie  taking  is  lawful,  as  in 
damage  feasant  and  the  taking  tortious  as  against  sufficient  gages  and 
pledges  tendered.    Mirror  of  Justices  Ch.  2,  §  26. 

2  See  post  Chap.  2. 

*3  Blackstone,  6;  Gilbert  on  Distresses,  4 ;  Anon  Dyer,  280;  Bradby  on 
Distresses,  p.  1,  and  following 

'  Distresses  are  called  Revenges  in  Stat.  Marlbridge,  52;  H.  III.  Chap.  1 
and  3.  A.  D.  1267. 


DISTRESS   FOR    RENT  —  COULD    KOT   EE    SOLD.  5 

recaption,  or  ample  reprisals  would  be  made  at  the  earliest 
moment  the  party  was  prepared  to  <lo  so.^  Serious  contests, 
long  and  bitter  feuds  and  bloodshed  were  the  common  results. 
In  process  of  time,  as  society  began  to  grow  stronger,  and  the 
public  safety  to  forbid  such  contests,  custom  and  law  began  to 
have  force;  the  taking,  though  still  permitted,  was  hedged  in 
by  certain  rules;  resistance  or  recaption  was  forbidden  unless, 
as  M-as  grimly  said,  the  taking  was  wrongful;  the  thing  taken 
came  to  be  regarded  in  the  light  of  a  pledge  or  security,  to  be 
returned  when  satisfaction  was  made;  and  replevin  grew  and 
became  a  legal  proceeding  by  which  a  person  might  recover 
his  property  wrongfully  taken  or  wrongfully  detained  from 
him  by  disti'ess.^ 

§  7.  Usually  for  rent.  The  injury  for  which  distress  was 
most  usually  permitted  was  the  non-paj'ment  of  rent  or  dues 
by  a  tenant  to  his  lord.  If  the  tenant  failed  in  the  payment 
of  his  rent,  or  refused  to  perform  the  service  which  his  feudal 
contract  bound  him  to  do,  the  lord  would  sei;^e  his  goods, 
(usually  cattle,)  and  detain  them  as  a  pledge  or  security  to 
compel  payment  or  performance.^  The  thing  taken,  as  well 
as  the  process  by  which  it  was  taken,  was  called  a  distress.* 

§  8.  Could  not  be  sold.  Prior  to  the  statute,  2  ^Y.  &  M. 
Ch.  5,  a  distress,  unless  for  dues  to  the  King,  could  not  be  sold, 
and  so  was  no  payment  or  satisfaction  to  the  distrainor;  it 
could  be  held  as  a  pledge  or  security  only.  The  distrainor 
might  impound  the  cattle  in  pound  overt  to  be  fed  by  the 
owner,  and  at  the  owner's  risk  in  case  they  died,^  and  so  pain 
or  distress  him  until  he  should  perform  the  service,  or  dis- 

'  This  afterwards  came  to  be  called  breviamanu,  "writs  of  hand."  His- 
torical Law  Tracts  published  by  Miller,  (London,  lT4o,)  2S9. 

■^  Mathews  v.  Carey,  3  Mod.  187;  Anon  Dyer,  2'jO;  3  Blackstone,  6,  et  seq. 
145,  et  seq;  Year  Books  passim. 

3  3  Blackstone,  145,  et  seq.;  F.  N.  B.  68;  Evans  v.  Brander,  2  H.  Bla.  547. 

■•  3  Blackstone,  6.  Distresses  were  usually  the  cattle  of  the  debtor.  The 
term  cattle  included  horses,  down  to  quite  a  late  period  —  Macauley's  Hist. 
Vol.  1,  p.  294  —  and  originally  was  synonymous  with  chattel. 

°  Gilbert  on  Distresses,  4;  Anon  Dyer,  280  b;  3  Blackstone,  14-145,  et  seq.; 
Vioglam  V.  Cowperthwaite,  2  Dall.  68;  King  v.  Blackmore,  72  Pa.  St.  347. 
In  this  country  it  is  the  duty  of  the  party  impounding  cattle  to  feed  them. 
Adams  v.  Adams,  13  Pick.  385. 


b  HISTORICAL    INTRODUCTION. 

charge  his  cattle  bj  payment  of  the  sum  for  which  they  were 
distrained. 

§  9,  Abuses  of  the  right  of  distress.  Gross  abuses  grew  out 
of  the  exercise  of  tliis  right  of  distress.  In  the  wars  of  tlie 
barons  each  was  anxious  to  appear  at  the  head  of  the  largest 
body  of  vassals.  Distresses  were  frequently  made  to  compel 
the  tenant  to  perform  military  service  not  due,  or  to  perform 
service  which  he  was  not  bound  to  perform  under  his  tenure. 
When  neighboring  lords  were  seeking  to  enlarge  their  domains, 
tlie  tenants  were  frequently  distrained  upon  by  both.  The 
liusbandry  of  the  realm,  then  its  only  support,  was  greatly 
injured,  and  the  public  peace  disturbed.  In  the  latter  part  of 
the  reign  of  Henry  III.  laws  were  enacted  regulating  distress 
and  enlarging  and  simplifying  the  remedies  for  illegal  dis- 
tresses, ^  and  it  was  from  one  of  these  acts,  that  is  the  twenty- 
lirst  chapter  of  the  Statute  of  Marlbridge,  that  the  action  of 
replevin  received  its  principal  impetus. 

§10.  Replevin  defined.  To  replevy,  iis  its  T\a.me(replegia re 
—  to  take  back  the  pledge,)  indicates,  is  when  the  person  dis- 
trained upon  applies  to  the  proper  officer,  and  has  his  distress 
returned  to  him  upon  giving  security  to  try  the  right  of  taking 
or  distraining  in  an  action  at  law.^  The  writ  did  not  contain 
a  summons  to  the  defendant,  and  was  not  returnable  to  any 
superior  court,  but  commanded  the  sheriff  to  see  justice  done 
between  the  parties.  The  sheriff,  by  the  writ,  was  authorized 
to  act  as  the  judge.  In  this  the  writ  differed  from  ordinary 
writs,  in  which  the  sheriff  acted  in  his  ministerial  capacity.^ 

§  11.  The  writ  was  not  retui'nable,  but  gave  the  sheriff 
power  to  try  the  case.  Prior  to  the  enactment  of  the  Statute 
of  Marlbridge  the  proceeding  was  commenced  by  writ  issuing 

1  SUitute  de  Districtione  Scaccarii,  51,  Henry  III.  1200;  Statute  Marl.  52, 
Henry  111.  C.  1,  A.  D.  1207 ;  Reeves'  Hist.  Vol.  3,  p.  GO ;  Gilbert  oa  Dis- 
tresses, 3;  3  Blackstone,  14-140. 

*  3  Blackstone  Com.  13;  Co.  Lilt.  145  &.  Vetitum  nnmium  (forbidden 
pledge,)  as  it  was  anciently  called,  was  when  the  bailiff  of  the  lord  dis- 
trained  and  the  lord  forbiddeth  the  sheriff  to  deliver  the  distress  when  the 
sheriff  cometh  to  deliver  it.  2  lust.  140;  Gilbert  on  R.  79.  Spelm.  Law 
Gloss. 

»  Filz  N.  B.  8G;  3  Blackstone,  140, 147;  Weaver  ®.  Lawrence,  1  Dall.  156. 


IF   DEFENDANT   CLAIMED,    SHERIFF    COULD    NOT    PROCEED.         7 

out  of  chancery.  1  It  was  a  judicial  writ;  so  called  because 
it  gave  the  sheriff  power  to  hear  and  determine  the  matter 
complained  of.^ 

§  12.  If  the  defendant  claimed  to  own  the  property,  the 
sheriflf  could  not  proceed.  If  the  defendant  claimed  to  own 
the  property,  the  sheriff  could  proceed  no  further  with  the 
replevin.  The  writ  was  framed  to  try  the  question  of  caption 
or  detention  only,  and  not  the  title  to  the  property;  but  the 
plaintiff  might  sue  in  an  appeal  of  felony,  and  if  he  was  suc- 
cessful he  got  his  goods,  and  the  taker  was  regarded  as  a  robber, 
and  was  hanged. ^  Subsequently,  when  the  property  was  so 
claimed  by  the  defendant,  the  writ  de  pi'oprnetate  jpi'obandq, 
was  sued  out  to  settle  the  question  of  ownership,  and  that  was 
first  determined.  For  the  defendant  to  claim  that  he  owned 
the  goods,  on  the  trial  of  the  suit,  was  unheard  ot  in  early 
cases.* 

'  The  form  of  the  writ  was  as  follows: 
"The  KiNfi,  etc.,  to  the  Sheriff,  etc.: 

"We  command  you,  that  justly,  and  without  delay,  you  cause  to  be  re- 
plevied the  cattle  of  B.,  which  D.  took  and  unjustly  detains,  as  it  is  said, 
and  afterwards  thereupon  cause  him  justly  to  be  removed,  that  we  may  hear 
no  more  clamour  thereupon  for  want  of  justice,"  etc. 

''Pledges —  " 

Fitz  N.  B.,  G8  D.  The  writ  given  by  Glanvil  is  substantially  the  same. 
Glanvil,  Beam's  Trans.  294. 

*  Gilbert,  Blackstone,  and  other  writers,  speak  of  such  writs  as  mcontiel 
— not  being  returnable,  but  commanding  the  sheriff  vice  comite,  to  see  justice 
done.  Such  writs  were  common  in  the  early  history  of  the  law.  Gilbert  on 
Replevin,  59;  3  Blackstone,  238.  The  Nutura  Bretium  contains  many 
such  writs.  Fitz  N.  B.  'paa&im;  Glanvil,  Book  12,  Ch.  12;  Crabb's  Hist. 
Eng.  Law,  116. 

3  Britton,  Vol.  1,  Ch.  28;  Mirror,  Ch.  2,  §  26,  cited  ante,  §  1,  note  2;  Ez 
•parte  Chamberlain,  1  Scho.  &  Lef.  320,  note.  This  appeal  was  made  as 
follows:  John,  who  is  here,  appeals  Peter,  who  is  there,  that,  whereas,  the 
same  John,  on  such  a  day,  and  had  a  horse  which  he  kept  in  his  stable. 
The  same  Peter  there  came,  and  the  same  horse  feloniously,  as  a  felon, 
stole  from  him,  and  took  and  led  away,  against  the  peace,  and  that  this  he 
wickedly  did  the  same  John  oilers  to  prove  by  his  body,  as  the  court  shall 
award  that  he  ought  to  do  it.     Britton,  Vol.  1,  p.  115. 

*  GilV)ert  on  Keplevin,  98;  3  Blackstone  Com.  148;  Shannon  b.  Shannon, 
1  Scho.  &  Lef.  327;  Leonard  -y.  Stacy,  6  Mod.  140.  If  the  sheriff  took  the 
property  after  a  claim  of  ownership  by  the  defendant,  he  was  a  trespasser 
ab  initio.    "In  replevin,  the  defendant  said  he  had  property  in  the  beasts 


8  mSTOKICAL   INTKODTJCTION. 

§  13.  Alias  and  pluries  writs,  and  the  practice.  Pluries 
always  returnable.  The  reason  therefor.  If  the  sherifi"  failed 
to  serve  the  first  writ,  the  plaintiff  was  entitled  to  an  alias, 
and  then  to  a  'pluries.  In  practice,  however,  it  became  usual 
for  the  plaintiff  to  take  all  three,  the  writ,  the  alias  and  the 
pluries  at  one  time.*  And  he  might  deliver  all  these  writs  to 
the  sheriff;^  or  he  might  deliver  the  alias  or  pluries  only,  as 
he  saw  iit.^  The  original,  as  has  been  said,  and  the  alias  were 
not  returnable,  but  \\\q  pluries  always  contained  the  clause  iJeZ 
causam  nobis  certifices,  etc.,  or  certify  to  us  the  reason  why,  etc. 
This  writ  was  always  returnable,  the  sheriff  being  therein 
commanded  to  certify  the  reason  why  he  could  not,  or  would 
not,  execute  the  command  of  the  former  writs.  The  reason, 
as  stated  by  Gilbert,  being,  the  sheriff,  having  twice  failed  in 
his  duty,  (in  not  returning  the  original  and  alias,)  was  not 
further  to  be  trusted  with  judicial  power,  and  as  he  is  answer- 
able to  the  court  how  he  has  obeyed  the  command  of  the 
writ,  the  court  must  have  it,  to  see  whether  he  has  done  his 
duty  or  not.  If  he  had  failed,  he  was  fined  for  disobedience.* 
If,  however,  the  sheriff  had  had  no  other  writ  than  the  plu- 
ries delivered  to  him,  he  might  make  return  of  that  fact,  and 
so  excuse  himself,  for  supposed  neglect  of  duty.^ 

§  14.  Cattle  driven  within  a  liberty  — the  writ  non  omittas. 
If  the  sheriff's  return  to  the  writ  showed  that  the  cattle  were 
driven  within  some  liberty,  and  that  the  bailiff  of  the  liberty 
made  no  answer  to  his  demand  for  them,  the  plaintiff  might 
have  an  alias  or  pluries  non  omittas.     This  authorized  the 

ahseque  hoc;  that  tlie  property  was  in  the  plaintiff,  and  prayed  judgment, 
and  it  was  found  for  tlie  plaintiff.  Sergeant  Harvey  moved  in  arrest  of 
judgment,  for  in  no  booli  was  found  such  a  traverse  as  this;  Hutton,  Jus- 
tice, said  this  was  never  seen  by  him,  and  tLey  all  agreed  that  judgment 
shall  be  for  the  plaintiff."  Anon  Winch,  26;  Weaver  «.  Lawrence,  1  Dall. 
156. 

'  F.  N.  B.  68  E. ;  Gilbert  on  Replevin,  75. 

2  F.  N.  B.  68  E. 

3  Gilbert  on  Replevin,  75;  Anon  Dyer,  189a;  F.  N.  B.  68;  Thomas,  of 
Matyshale,  v.  The  Abbot  of  Cirencester,  Year  Book,  30,  E.  1, 18.  See  this 
case  post,  §  25,  note. 

*  Gilbert  on  Replevin,  77 ;     F.  N.  B.  68;  Freeman  v.  Bluet,  12  Mod.  395. 

*  Gilbert  on  Replevia,  76,  et  seq. 


WRIT   ISSUED   ONLY   AT   "WESTMINSTER.  9 

sheriff  to  enter  tlie  liberty  or  franchise  and  deliver  the  plaintiff's 
beasts.^  The  clause  which  sometimes  appears  in  our  writs  of  the 
present  diiy,  "and  this  you  are  not  to  omit,  under  the  penalty 
of  the  law,"  though  now  nothing  more  than  a  rather  sonorous 
form,  was  once  a  special  and  highly  essential  part  of  the  writ,^ 
without  which  it  would  have  been  useless. ^ 

§  15.  The  writ  issued  only  atWestminster.  The  writ  of 
replevin,  like  all  other  original  writs,  could  only  issue  out  of 
chancery  at  Westminster,  the  King's  chancellor  being  the  only 
officer  in  the  kingdom  who  could  issue  such  writs,  and  West- 
minster was  the  only  chancery  ofHce  or  place  whence  they 
could  issue. 4 

§  16.  Delay  in  the  issuing  of  the  writ  occasion ed  thereby. 
Westminster  was  several  days'  journey  from  the  extremities 
of  the  kingdom.  A  journey  from  London  to  ISTew  Castle  by 
land  probably  occupied  as  much  time  then  as  a  journey  from 
New  York  to  San  Francisco  would  now.  Something  like 
it  occurred  in  the  early  histor}'-  of  Illinois,  when  a  court  at 
Kaskaskia  sent  its  writs  to  Milwaukee.  The  delay  which 
this  occasioned  was  a  serious  hardship  to  the  tenant,  who  was 
compelled  to  feed  his  beasts  until  a  writ  could  be  obtained 
without  having  the  use  of  them.  It  was,  moreover,  a  great 
detriment  to  the  husbandry  of  the  realm,  and  in  those  days 
agriculture  was  the  sole  support  of  the  nation. ^ 

§  17.     Replevin  by  "  plaint,"  sheriff  authorized  to  proceed 

'  Gilbert  on  Replevin,  69,  et  seq.     See  post,  %  23.  note.    F.  N.  B.  G8. 

*  Gilbert's  Plistory  and  Practice  of  the  Court  of  Common  Pleas,  26,  et  seq. 
See  post,  §  28  note. 

3  Reeve's  Hist.  Ch.  10,  p.  93,  (Finlason's  Ed.) 

*  3  Blackstone,  50  lb.  273;  History  and  Practice  of  tlie  Court  of  Com- 
mon pleas,  15,  et  seq.  The  mode  of  commencing  a  civil  suit  in  the  reitrn 
of  Henry  III.,  as  well  as  in  earlier  and  subsequent  times,  was  by  the  pur- 
chase of  a  writ.  Writs,  when  issued,  were  sent  by  the  bands  of  messen- 
gers who  traveled  through  the  kingdom  and  delivered  them  to  the  sheriffs 
of  the  counties  to  be  served  on  defendants.  Horwood  in  his  preface  to  the 
Year  Book,  80,  31,  E.  I.  p.  26.  Macaulay's  History  of  England,  Vol.  1,  p. 
347,  contains  a  description  of  the  roads  and  difficulties  of  travel  four 
hundred  years  later.  In  1700  York  was  a  week  distant  from  Loudon. 
Lives  of  the  Engineers,  p.  23. 

«  History  of  Eugland ;  Potter  v.  Hall,  3  Pick.  368. 


10  HISTORICAL   INTRODUCTION. 

without  writ.  To  remedy  this  the  Statute  of  Marlbridge  was 
enacted.  This  statute,  as  before  remarked,  was  one  of  the 
most  important  in  English  history,  and  without  doubt  the 
Cliapter  on  Replevin  had  as  marked,  lasting  and  beneficial 
effect  on  the  laws  of  Great  Britain  as  any  other  chapter  ever 
enacted.  This  chapter  (Ch.  21,)  gave  the  sheriff  power,  upon 
complaint  made  to  him,  without  any  writ  or  process  from  any 
superior,  to  deliver  to  the  plaintiff  his  cattle;  or,  if  they 
were  taken  within  any  liberty,  the  sheriff  might  at  once 
enter  the  liberty  to  make  replevin.  In  other  words,  this 
chapter  operated  like  a  general  continuing  writ  of  replevin 
available  for  all  persons  in  all  cases,  or  it  saved  the  necessity 
for  any  writ,  and  by  virtue  of  its  provisions  the  sheriff,  upon 
complaint  made  to  him,  might,  upon  his  own  authority,  either 
by  word,  (for  frequently  the  sheriff  of  those  days  could  not 
write,)  or  by  precept  to  his  bailiff,  replevy  the  plaintiff's 
goods.  1  After  the  adoption  of  this  statute  proceedings  by 
writ  gradually  fell  into  disuse,  and  has  long  since  become 
obsolete  in  England.  Its  use  was  continued  in  Ireland  some 
years  later. 

§  18.  Proceeding  in  case  of  resistance.  Proceedings  under 
this  statute  were  called  "  Proceedings  by  Plaint."  The  sheriff, 
upon  plaint,  (^.  e.  complaint,)  made  to  him^  went  in  person, 
or  sent  one  of  his  bailiffs,  to  the  place  where  the  cattle  were 

J  Ch.  21,  Statute  Marl.  52  Henry  III.  A.  D.  12G7,  is  as  follows:  "It  is 
provided,  also,  that  if  the  beasts  of  any  man  be  taken  and  wrongfully  with- 
holden  the  sheriff,  after  complaint  made  to  him  thereof,  may  deliver  them 
without  let  or  gainsaying  of  him  that  took  the  beasts,  if  they  were  taken 
out  of  liberties;  and  if  tlie  beasts  were  taken  within  any  liberties,  and  the 
bailiff  of  the  liberty  will  not  deliver  them,  then  the  sheriff,  for  default 
of  those  bailiffs,  shall  cause  them  to  be  delivered." 

These  liberties  were  estates,  baronys,  towns  or  monasteries,  etc.,  in  which 
the  lord  claimed  jurisdiction  to  the  exclusion  of  the  King's  ordinary  writ, 
the  right  proceeding  frequently  from  a  grant  from  the  King,  or  immemorial 
custom.  Gilbert's  Hist.  Com.  Pleas,  p.  25;  Macaulay's  Hist.  Eng.  (Library 
Ed.)  Vol.  1,  p.  338.  See,  also,  Ch.  16  and  22  to  25  Fortunes  of  Nigle,  for 
Scott's  highly  dramatic  account  of  the  immunities  of  Whitefriars,  the  most 
famous  of  the  many  liberties  of  the  kingdom. 

*  The  affidavit  of  modern  practice  is  the  "plaint"  of  ancient  practice. 
Anderson  v.  Hapler,  84  III.  436. 


ANaENT   METHOD    OF    TRIAL.  11 

detained  and  demanded  sight  of  them.i  If  this  were  denied  he 
might  raise  the  hne  and  cry;  or  in  case  of  resistance  appreliend 
the  offender  and  put  him  in  jail.^  If  the  distress  had  been 
driven  into  a  castle  or  other  stronghold  the  sheriff,  after  de- 
mand, might  break  it  open  to  enable  him  to  deliver  them.^ 
The  common  law  privilege  which  was  accorded  to  a  man's 
liouse  or  castle  would  protect  himself  or  family'  from  arrest,  or 
his  goods  from  seizure  on  a  civil  process,  but  could  not  protect 
or  privilege  him  to  keep  the  goods  of  another  person  unjustly 
taken  so  as  to  prevent  service  of  the  replevin.*  The  practice 
of  driving  distresses  into  strongliolds  was  so  frequent  in  the 
wars  of  the  barons,  and  the  poorer  men  suffered  so  much,  that 
the  Statute  of  West.  1.  Ch.  17  was  enacted  expressly  giving 
the  sheriff  power,  after  demand  made,  to  break  into  a  house, 
castle,  or  other  stronghold,  to  make  replevin  of  goods.  This 
statute  farther  to  deter  lords  from  refusing  to  deliver  dis- 
tresses to  tlie  sheriff  on  replevin,  provided  that  the  house  or 
castle  so  used  should  be  razed  and  destroyed.  This,  howevery 
could  not  be  done  without  the  King's  writ  after  a  fair  trial. 

§  19.  In  ease  of  no  resistance.  If  no  opposition  was  made 
to  the  sheriff  he  would  immediately,  on  sight  of  tlie  beasts, 
deliver  them  to  the  plaintiff  and  then  give  tlie  parties  a  day. 
in  which  to  appear  in  the  county  court  and  trj'  the  matter. ^ 

§  20.  Ancient  method  of  trial.  The  manner  of  trying  the 
case  anciently  was  for  the  plaintiff  to  have  his  suitors,  i.  e. 
witnesses,  ready  to  prove  he  had  offered  the  lord  a  pledge,  or 
securitj^,  under  the  impression  that  that  was  sufficient,  and 
that  the  lord  had  no  right  to  seize  or  distrain  j)ledges  when 

'  Eeeve's  Hist.  Vol.  2,  p.  48.  It  is  probable  that  the  sheriff  never  served 
such  process  in  person,  but  that  he  always  sent  one  of  his  deputies.  Ack- 
worth  V.  Kempe  Douglass,  40;  Blackwell  v.  Hunt,  Noy,  107.  Perhaps  the 
sheriff  executed  the  writ  in  person,  and  sent  his  bailiti'  when  the  suit  was 
begun  by  plaint.  Gilbert  on  Replevin,  G7.  Tiie  statute,  1  and  2  P.  &  il, 
Ch.  12,  §  3,  required  the  sheriffs  to  have  at  least  four  bailiffs  in  each  county 
for  the  sole  purpose  of  making  replevin. 

2  Reeve's  Hist.  Vol.  2,  p.  48;  Brittou,  Vol.  1,  p.  137. 

^  This  is  the  statute  law  in  several  of  the  States  to-daj'. 

*  Gilbert  on  Replevin,  p.  70. 

»  Reeve's  Hist.  Vol.  2,  p.  48. 


12  HISTORICAL   raTRODUCTION. 

sufficient  pledges  had  been  tendered  him.i  The  form  of  tlie 
■writ  and  declaration  in  many  States  to  this  day  contains  the 
words,  "  Wherefore,  he  took,"  etc.,  and  nnjastlj  detains  the 
same  "  against  the  sureties  and  pledges^''  etc.  This  is  a  frag- 
ment of  the  old  common  law  practice  which  still  clings  to  this 
action,  though  the  reason  for  it  is  sometimes  forgotten.  It 
tells  us  of  the  law  of  replevin  as  it  was  practiced  more  than 
six  hundred  years  ago.^ 

§  21.  Both  parties  actors  or  plaintiffs.  Both  parties  were 
called  "  actors,"  a  term  borrowed  from  the  civil  law,  signifying 
plaintiff.3  The  defendant  became  an  actor  by  avowing  the 
taking  and  seeking  a  return  of  the  goods.  The  plaintiff,  or 
complainant,  might  show  the  taking  and  detention  to  be 
wrongful,  and  the  defendant,  or  avowant,  while  he  could  not 
deny  the  taking  or  detention  against  the  sheriff's  return,  might 
show  that  it  was  rightful,  and  demand  a  return  of  the  goods. 
Keplevin  was  one  of  the  favorites  of  the  law.  In  ordinary 
actions  the  defendant  might  have  essoin,  that  is,  he  might 
send  his  servant  with  an  excuse  and  have  delay;  but  an  unjust 
takinof  and  detention  of  the  defendant's  ffoods  a2:ainst  ffajre 
and  pledge  was  regarded  in  an  unfavorable  light.  It  was 
against  the  peace,  and  but  little  removed  from  robbery.     The 

'  Reeve's  Hist.  Vol.  2,  p.  46;  Gilbert  on  Replevin,  pp.  40,  59,  69.  When 
both  parties  appear  in  court  tlie  plaintiff  shall  set  forth  his  plaint  that, 
whereas,  he  had  his  beasts,  to-wit:  two  oxen,  two  horses  or  two  cows,  or 
such  chattels,  according  to  the  nature  of  the  distress,  on  such  a  day,  in 
such  a  year  of  our  reign,  in  such  a  certain  place,  there  came  such  an  one, 
(the  detainer,)  and  took  the  same  beasts  there  found,  or  caused  them  to  be 
taken  by  such  an  one,  and  drove  them  away  from  the  same  place  to  another 
place;  and  then  came  the  phiintitf  and  demanded  to  have  his  cattle  quietly 
and  could  not  have  them,  and  afterwards  tendered  security  for  the  sake  of 
peace,  and  ollered  pledges  to  appear  in  his  court,  or  elsewhere,  to  stand  to 
justice  if  he  had  any  demand  to  make  against  him,  and  yet  he  wrongfully, 
against  gage  and  pledge,  detained  them  until  the  same  beasts  were  deliv- 
ered  by  the  sheriff.    Britton.  Vol.  1,  p.  139. 

2  Evans  v.  Brander.  2  H.  Bla.  547. 

3  Statute  Westm.  2,  Ch.  2,  §  2;  Coan  v.  Bowles.  Garth.  122;  Anon,  2  Mod. 
199,  case  118;  Yates  v.  Fassett,  5  Denio,  21;  Persse  v.  Watrous,  30  Conn. 
146.  Each  party  may  recover  judgment  against  the  otlier  for  different 
parts  of  the  property  and  for  damages  and  costs.  Clark  v.  Keith,  9  Ohio, 
73;  Seymour  v.  Billings,  12  Wend.  286. 


REMOVAL    TO    THE    COUr.T   OF   KINg's    BENCIT.  13 

taker  must,  therefore,  state  liis  reason  at  tlie  daj  appointed  by 
the  sheriff.^ 

§22.  A-vowry  and  cognizance.  When  the  defendant  avowed 
the  taking  in  his  own  right,  as  for  rent  in  arrear,  setting  up 
the  riglit  in  his  defense,  it  was  called  an  avowry,  and  he  was 
called  an  avowant.  When  the  defendant  admitted  the  taking, 
but  set  up  the  right  of  another  under  whose  autliority  he 
acted,  it  was  called  making  cognizance,  and  he  was  called  the 
cogiiizor.2 

§  23.  Justified  the  taking.  The  different  claims  which  the 
avowant  might  set  up  as  his  excuse  or  justification  for  taking 
the  goods  were  numerous.  He  might  avow  for  rent  in  arrear, 
or  for  damage  feasant,  or  justify  the  taking  under  judgment 
of  the  lord's  court.  These  and  otlier  excuses  or  justifications 
the  plaintiff  could  deny,  and  the  question  so  presented  was 
tried.  If  the  plaintiff  was  successful  in  his  suit,  he  was  en- 
titled to  retain  the  goods  replevied,  and  to  have  damages  for 
the  wrongful  taking  and  the  loss  which  it  occasioned  him.  If 
however,  the  plaintiff  failed  to  sustain  his  suit,  he  was  in 
mercy,  and  might  be,  and  anciently  was,  fined  for  his  false 
clamor,  and  the  defendant  avowant  was  entitled  to  a  return  of 
the  distress,  and  by  the  statute,  (21  Henry  YIII.,  Chap.  19,) 
to  damages.^ 

§  24.  Removal  to  the  court  of  King's  bench.  Either  party 
might  remove  the  case  from  before  the  county  court  (Sheriff 'a 
court)  to  the  court  of  common  pleas,  or  King's  bench;  the 
plaintiff',  without  showing  cause,  as  the  suit  was  his  own;  the 
defendant,  upon  reasonable  cause.*  But  the  removal  was 
allowed  for  slight  cause,  and  the  truth  of  the  cause  alleged  was 

1  Reeve's  Hist.  Vol.  2,  pp.  48,  49;  Gilbert  on  Replevin,  77,  78;  Britton, 
Vol.  1,  p.  137.  This,  perhaps,  simply  means  that  the  defendant  might  have 
a  continuance  upon  showing  cause  in  ordinary  cases,  but  not  in  replevin. 
Glanvil  devotes  some  space  to  the  law  of  essoins.  Glanvil,  B.  1,  Ch.  23, 
et  seq.;  Beam's  Trans. 

2  Statue  21.  Henry  VIII.  Ch.  19. 

■*  A.non,  Dyer,  141^;  Riccards  v.  Cornforth,  5  Mod.  306;  Woodcroft  v. 
Kynaston,  9  jSIod.  305;  Gilbert  on  Replevin,  62;  Britton,  Vol.  1,  p.  140. 

■»  Gilbert  on  Replevin,  102;  3  Blaclsstone's  Com.  149;  Statute  Westm.  2, 
13,  Edward  I.,  Ch.  2,  A.  D.  1285;  Woodcroft  v.  Kynaston.  9  Mod.  .305; 
A-non  Loftus,  520 ;  F.  N.  B.  69,  70. 


14:  HISTOEICAL   INTRODUCTION. 

not  inquired  into.^  Or,  if  in  the  course  of  the  proceeding,  it 
appeared  that  the  right  of  freehold  came  in  question,  it  must  of 
necessity  be  removed,  as  the  slieriff  could  not  try  it  in  his  county 
court. 2  So  it  became  usual  to  carry  up  all  cases  from  the 
sheriflp  to  the  courts  of  Westminster  Hall,  in  the  first  instance. 
The  usual  mode  to  oust  the  sheriff  of  jurisdiction  was  for  the 
plaintiff  to  take  the  alias  and  pluries,  with  the  original  writ, 
and  deliver  only  the  phtrles  to  the  sheriff  to  be  served,  which,  as 
we  have  seen,  was  always  returnable.^  The  sheriff  thereupon 
returned  the  writ  at  once  to  the  superior  court.  If  the  pro- 
ceeding were  commenced  by  writ,  the  removal  was  effected  by 
the  writ  of  poiie,  as  it  was  called,  from  the  words  of  the  writ 
pone  ad  petitionem^  etc.,  coram  jnsticiaris  nostris.  "  Put  on 
the  petition,  etc.,  before  our  justices,"  etc.  If  the  proceeding 
liad  been  begun  by  plaint,  the  removal  was  effected  by  a  writ 
of  recordari,  which  was  a  writ  to  the  sheriff  commanding  him 
to  make  a  record  of  the  proceeding  before  him,  and  return  the 
record  so  made  before  the  King's  justices  at  Westminster.* 
This  record  gave  the  justices  authority  to  act,  while,  in  case 
the  proceeding  was  by  writ,  the  King's  writ  put  before  them 
gave  them  sufficient  authority  to  proceed. 

§  25.  The  writ  of  withernam.  If  the  defendant  had  eloigned 
the  distress,  driven  it  out  of  the  county,  or  had  concealed  it, 
then,  upon  the  sheriff's  return  showing  that  fact,  the  plaintiff 
was  entitled  to  a  capias  in  withernam,^  a  writ  deriving  its  name 

'  Gilbert  on  Replevin,  105.  Originally  the  law  seems  to  have  been  other- 
wise.    F.  N.  B.  119,  K. 

2  This  does  not  imply  that  a  freehold  was  or  could  be  the  subject  of  re- 
plevin; but  the  tenant  or  plaintiff  in  replevin  would  sometimes  deny  that 
he  held  his  lands  of  the  avowant,  and  so  require  him  to  prove  it,  and  in 
this  way  the  title  of  the  lord  came  in  question.  Statute  Westm.  2,  Ch.  2, 
§  1.  Coke's  Reports  contain  many  cases  in  replevin  which  present  this 
question  in  some  form.  Fordham  v.  Akers,  33  L.  J.  Q.  B.  67,  liolds  tliat 
county  courts  may  proceed  even  when  title  to  land  is  involved,  if  the 
defendant  does  not  remove  the  case. 

2  Ante,  §  12;  Moore  v.  Watts,  1  Ld.  Raym.  613;  Woodcroft  v.  Kynaston, 
9  Mod.  305. 

*  F.  N.  B.  69,  70;  Statute  Westra.  2,  13,  Edward  I.,  Ch.  2,  A.  D.  1285. 
The  writ  is  usually  called  the  re.  fa.  lo.,  an  abbreviation  of  the  words 
recordari facias  loquclam.    Daggett  v.  Robins,  2  Blackf.  417. 


•THE    WRIT   OF    WITHERNAM.  15 

from  two  Saxon  words,  weder,  other,  naaum,  distress,^  upon 
which  he  might  have  a  second  or  indemnifying  distress,  the 
writ  being  a  command  to  the  sheriff  to  take  other  cattle  or 
other  goods  of  the  distrainor  and  deliver  them  to  the  plaintiff, 
in  lieu  of  his  own,  wrongfully  withholden  from  him.  So, 
when  the  defendant  had  judgment  for  a  return  of  a  distress 
which  had  been  replevied  from  him,  and  the  plaintiff  had 
eloigned  or  concealed  the  goods,  the  defendant  was  entitled  to 
the  writ  of  withernam.  This  was  a  kind  of  reprisal  or  pun- 
ishment for  wrongfully  withholding  the  distress.  It  was  a 
relic  of  the  lex  talionis  wliich  prevailed  at  a  much  earlier 
period. 2  Goods  taken  by  this  process  were  not  repleviable 
until  the  original  distress  was  forthcoming. ^ 

1  F.  K  B.  73  F.;  Moor  v.  Watts,  2  Salk,  581;  Gilbert  on  Replevin,  79; 
Anon  Dyer,  188&.  The  last  case  found  in  which  this  writ  is  recognized  in 
this  country  is  Bennett  v.  Berry,  8  Blackf.  1.  See.  also,  Woglam  v.  Cowper- 
thwaite,  2  Dall.  (Pa.)  68;  Weaver  v.  Lawrence,!  Dull.  1G7;  Swann  v.  Shem- 
wcll,  2  Har.  &  G.  (Md.)  283;  M'Colgan  v.  Huston,  2  Nott  &  M.  (S.  C.)  444. 
A  proceeding  similar  in  its  effect,  though  not  ia  form,  has  found  a  place 
in  Michigan.     Rathbun  v.  Ranney,  14  Mich.  387. 

*  "Let  the  judgment  be  this:  That  he  loose  the  like  member  as  he  has 
destroyed  of  the  plaintiff."  Britton,  Vol.  1,  p.  122.  Substantially  the  same 
as  Exodus,  Ch.  21,  ver.  24.  The  writ  of  withernam  was  not  a  part  of  the 
proceeding  in  the  replevin,  but  was  a  kind  of  punishment.  If  the  defendant 
came  in  and  pleaded  non  cepit,  it  would  stay  the  withernam,  as  he  is  not  con- 
cluded by  the  return  elongavit.     Swann  v.  Shemwell,  2  Har.  &  G.  (Md.)  283. 

2 1  venture  to  transcribe  into  this  note  a  case  from  the  Year  Book,  30,  31, 
Edward  I.,  p.  18,  not  only  as  a  specimen  of  the  ancient  style  of  law  report- 
ing,  but  as  illustrating  many  points  in  the  text,.  This  is  one  of  the  first 
Ciiscs,  reports  of  which  are  accessible.  There  are  a  number  of  cases,  some 
eight  or  ten  years  earlier,  but  none  which  so  vividly  illumine  the  points 
under  discussion.  This  report  also  possesses  value  as  showing  the  highly 
advanced  state  of  pleading  at  that  early  day,  and  the  technical  exactness 
with  which  the  law  was  administered.  It  may  be  remarked,  en  passant, 
that  the  amount  of  litigation  in  those  days,  as  shown  in  these  early  reports, 
is  a  matter  of  astonishment.  In  one  volume,  containing  about  the  same 
number  of  pages  as  an  ordinary  volume  of  law  reports  of  to-day,  may  be 
found  twenty-six  cases  of  replevin  alone. 

Report  of  the  case  of   The  Abbot  of  Cirencester  v.  Thomas,  of  Matyshale. 
Year  Booh  30,  31.  Edward  I.,  p.  18,  A.  D.  1302. 
[The  names  of  the  Judges  are  in  small  capitals,  and  counsel  in  italics.] 
The  Abbot  of  Cirencester  distrained  on  one  Thomas,  of  Matyshale,  ia 

the  town  of  Cirencester.    Thomas  came  into  court  and  [a  line  in  the  MS. 


16  HISTORICAL   INTEODUCTION. 

§  26.  Defects  in  the  statute  of  Marlbridge.  The  Statute  of 
Marlbridgc  and  proceeding  by  plaint  was  a  vast  improvement 
on  the  earlier  proceeding  by  writ.  Yet  certain  imperfections 
in  the  practical  operation  of  the  law  remained,  occasioning 
great  inconveniences  and  sometimes  injustice.  In  this,  as  in 
other  actions  at  law,  and  as  is  the  law  to  this  day,  a  non-suit 
suffered  by  the  plaintiif  did  not  debar  him  from  again  bring- 
ing suit  on  the  same  cause  of  action,  or  prevent  the  plaintiff 
in  replevin  from  suing  out  another  replevin  for  the  same 
property.  Advantage  of  this  rule  of  law  was  sometimes  taken 
by  lawyers  cf  the  olden  time,  who,  not  unlike  their  profes- 
sional brethren  of  to-day,  thought  more  of  a  substantial  vic- 
tor}'  for  their  clients  than  of  abstract  questions  touching  the 
dignity  of  the  law,  and  who  rather  prided  themselves  on  an 
observance  of  the  technical  rules  of  the  lav/,  especially  where 
these  rules  were  found  highly  advantageous  to  the  case  in 
which  they  were  engaged.  It,  therefore,  frequently  happened 
that  when  the  case  was  called  for  trial  and  the  plaintiff  saw 
his  opponent  with  his  witnesses  ready  to  proceed,  he  would 

here  has  been  entirely  erased,]  commenced  suing  the  Abbo'  _  The  bailiff 
of  the  slierifF  came,  and  wished  to  liberate  Thomas'  beasts,  and  could  not, 
because  Cirencester  is  of  the  King's  ancient  demesne,  and  not  guildable  to 
the  county  court,  etc.  Wherefore,  the  county  court  awarded  a  distress  on 
the  Abbot.  Afterwards  Thomas  brought  replevin,  etc.,  and  sought  delivery. 
*  *  *  WheraUne,  he  sued  out  the  replevin  ^^  sicut  alias  vel  cai/sam  nobis 
szgnijicetis"  and  to  this  writ  the  sheriff  returned  that  he  had  commanded 
the  bailiffs  of  the  liberty  of  the  Abbot  of  Cirencester  [and]  that  they  should 
[would]  do  nothing.  Wherefore,  the  ''  omit  not  by  reason  of  the  franchise  " 
was  sued  out,  etc.,  and  the  sheriff,  by  virture  of  this  writ,  entered  the  fran- 
chise and  made  deliverance  and  attached  the  Abbot,  etc.,  and  then  the  Ab- 
bot caused  the  proceedings  to  be  removed  into  banc  by  pone,  and  the  case 
ran  thus:  "That  the  said  Abbot  asserts  that  he  took  the  said  beasts  in  a 
portion  of  the  appurtenances  of  his  manor  of  Cirencester,  which  is  of  the 
ancient  demesne  of  the  crown  of  England,  for  customary,  etc.,  to  him  due. 
Thomas  and  the  Abbot  came  into  court.  Asseby  —  Counted,  etc.  HeHe  — 
Cirencester,  where  the  seizure  was  made,  is  of  the  ancient  demesne,  etc., 
where  no  writ  runs,  etc.,  except,  etc.,  and  this  Thomas  is  tenant  in  ancient 
demesne,  etc.,  and  we  do  not  understand  that  in  this  court,  or  elsewhere, 
at  common  law,  he  ought  to  be  answered.  '  Asseby  —  The  proceedings  were 
removed  here  at  his  own  suit,  etc.,  and  the  plea  is  attached  to  this  court, 
etc.,  and  we  pray  Judgment,  etc.  Warr  — The  place  where  the  seizure  was 
made  is  holden  of  the  Abbot  .etc.,  and  is  of  the  ancient  demesnes,  etc.,  and 


THE    STATUTE   OF   WESTMINSTER.  17 

suffer  himself  to  be  non-suited  and  a  return  of  the  property 
adjudged  against  liim,  and  would  then  at  once  replevy  the 
same  goods  again,  and  again  suffer  a  non-suit,  and  again 
replevy,  and  so  on  in  infinitum,  to  the  intolerable  vexation  of 
the  lord.  It  was  also  a  common  occurrence  for  the  tenant, 
pending  the  suit  in  replevin,  to  sell  the  cattle  and  become 
insolvent.  The  pledges  or  securities  which  the  plaintiff  gave, 
and  which  originally  were  required  to  be  substantial  secu- 
rities, were  only  to  answer  his  amercement  to  the  King  pro 
falso  clamor,  and  these  soon  degenerated  into  bare  form; 
John  Doe  and  Kichard  Roe,  imaginary  persons,  being  the  only 
security  required,  so  that  the  lord  took  nothing  by  his  judg- 
ment. ^ 

§  27.  The  statute  of  Westminster  and  the  writ  of  second 
deliverance.  To  remedy  these  evils  the  Statute  of  West- 
minster, 2,  Ch.  2,  was  enacted  in  the  thirteenth  year  of  Edward 

he  is  tenant  in  ancient  demesne,  etc.,  and  this  he  cannot  deny,  etc.;  and  we 
pray  judgment,  etc.  Bereford  —  He  tells  you  that  out  of  the  ancient 
deoiesnes  you  ought  not  to  be  answered  on  this  writ,  nor  any  other,  except 
where  you  are  distrained  for  services  whicli  you  do  not  owe.  As  for  that, 
tlieie  is  a  certain  writ  in  regular  form,  etc.  Assehy  —  You  formerly  sued 
for  a  return  of  the  chattels,  in  this  court,  on  the  plea,  etc.,  and  so  this  court 
is  seized,  etc.,  and  we  pray  judgment,  etc.  Warr  —  That  was  by  your  non- 
suit, etc.;  for  at  first  you  did  not  come  into  court;  wherefore,  we  were  able 
to  challenge  this  proceeding,  etc.  Bereford's  reply  to  his  statement  — 
That  you  are  of  the  King's  ancient  demesnes  witliin  which,  etc.,  the  seizure 
was  made,  etc.  Asseby  —  We  cannot  deny  that  Cirencester  where  the 
seizure  was  made,  is  of  the  ancient  demesnes,  etc.;  but  we  tell  you  that 
we  hold  the  tenements  where  the  seizure  was  made,  of  the  Abbot,  by  the 
services  of  XXVIII  d;  by  the  year,  in  lieu  of  all  services.     Warr  —  How 

do  you  prove  it?    Assehy  —  Ready Warr  —  Since  you  have  admitted 

that  Cirencester  is  of  the  ancient  demesnes,  etc.,  and  that  you  are  tenant, 
etc.,  and  do  not  show  that  these  tenements  have  been  enfranchised,  etc., 
we  pray  judgment,  etc.  Bereford,  (to  Asseby,)  —  Have  you  any  deed  to 
evidence  what  you  have  alleged,  etc.  ?  Asseby —  Heady,  etc.  Bereford  — 
Since,  etc.,  (as  above,  in  the  reply,)  the  court  adjudges  that  the  Abbot  goes 
quit,  without  day,  and  that  you,  etc.,  by  your  writ,  but  are  in  mercy,  etc. 
Warr  —  We  p''ay  the  return.  Bereford  —  You  shall  not  have  it  from  us ; 
but  when  you  get  to  the  inn  do  to  your  arch  villian  what  you  please,  etc. 
•  3  Inst.  p.  9;  3  Blackstone,  274,  287;  Baker  v.  Philips,  4  Johns.  190. 
"Pledgii"  in  the  old  books  signified  securities.  Evans  i?.  Brander,  2  H. 
Bla.  547. 

2 


18  HISTORICAL   INTRODUCTION. 

I.,  A.  D.  1285.1  Tbe  statute  also  provided  that  the  sheriff 
should  not  only  take  security  for  the  suit,  but  also  "for  the 
beasts  or  cattle  to  be  returned,  or  the  price  of  them,  if  return 
be  awarded."  Here  is  the  first  appearance  among  our  laws  of 
the  bond  or  security  for  the  return  of  the  goods  to  the  defend- 
ant in  replevin,  and  is  substantially  the  same  as  we  have  it  at 
the  distance  of  nearly  six  hundred  years.  The  Statute  of  11 
George  II.,  Ch.  19,  §§  22,  23,  being  only  explanatory,  and  in 
aid  of  the  provisions  of  the  Statute  of  Westminster  and  the 
Statute  Westminster  also  provided  against  replevins  in  infini- 

'  By  the  recent  publication  of  old  manuscript  reports  of  cases  in  the 
time  of  Edward  I.,  it  appears  that  Hengham  was  the  author  of  this  statute. 
Horwood's  preface  to  his  translation  of  Year  Book,  30,  31,  E.  I.  p.  31.  The 
chapter  cited  it  as  follows: 

I.  Forasmuch  as  lords  of  fees  distraining  their  tenants  for  services  and 
customs  due  unto  them,  are  many  times  grieved  because  their  tenants  do 
replevy  the  distress  by  writ,  or  without  writ,  and  when  the  lords  at  the 
complaint  of  their  tenant  do  come  by  attachment  into  the  county,  or  unto 
another  court  having  power  to  hold  pleas  of  replevin,  and  do  avow  the 
taking  good  and  lawful  by  reason  that  the  tenants  disavow  to  hold  aught, 
nor  do  claim  to  hold  anything  of  him  (which  took  the  distress  and 
avowed  it,)  he  that  distrained  is  amerced  and  the  tenants  go  quit,  to  whom 
punishment  cannot  be  assigned  for  such  disavowing  by  record  of  the 
county,  or  of  other  courts  having  no  record. 

II.  It  is  provided  and  ordained  from  henceforth,  that  where  such  lords 
cannot  obtain  justice  in  counties,  and  such  manner  of  courts  against  their 
tenants,  as  soon  as  they  shall  be  attached  at  the  suit  of  their  tenants,  a  writ 
shall  be  granted  to  tliem  to  remove  the  plea  before  the  justices,  before  whom, 
and  none  other,  where  justice  may  be  ministered  unto  such  lords,  and  the 
cause  shall  be  put  in  the  writ,  because  such  a  man  distrained  in  his  fee  for 
services  and  customs  to  him  due.  Neither  is  this  act  prejudicial  to  the  law 
commonly  used,  which  did  not  permit  that  any  pleas  should  be  moved  be- 
fore justices  at  the  suit  of  the  defendant.  For  though  it  appear  at  the  first 
show  that  the  tenant  is  plaintiff  and  the  lord  defendant,  nevertheless,  hav- 
ing respect  to  that,  that  the  lord  hath  distrained,  and  sueth  for  services  and 
customs  being  behind,  he  appeareth  indeed  to  be  rather  actor  or  plaintiflF 
than  defendant.  And  to  the  intent  the  justices  may  know  upon  what  fresh 
seizin  the  lords  may  avow  the  distress  reasonable  upon  their  tenants. 
From  henceforth  it  is  agreed  and  enacted,  that  a  reasonable  distress  may 
be  avowed  upon  the  seizin  of  any  ancestor  or  predecessor  since  the  time 
that  a  writ  of  novel  disseizure  hath  run.  And  because  it  chanceth  some- 
times that  the  tenant,  after  he  hath  replevied  his  beasts,  doth  sell  or  alien 
them,  whereby  return  cannot  be  made  unto  the  lord  that  distrained  if  it  be 
adjudged. 


THE   STATUTE   OF   WESTMINSTER.  19 

turn  by  awarding  the  avowant  a  return  of  the  cattle  after  a 
non-suit  of  tlie  plaintiff,  to  hold  irreplevible  except  by  a  writ 
issuing  upon  tlie  records  of  the  justices  before  whom  the  suit 
in  replevin  was  tried.  The  writ  of  retorno,  in  such  cases,  after 
the  order  for  return,  contained  a  clause  as  follows:     "And 

that  you  do  not  again  deliver  them  upon  complaint  of 

(the  plaintiff,)  without  our  writ,  which  should  expressly  men- 
tion the  aforesaid  judgment."  The  goods  returned  by  virtue 
of  this  writ  were  not  again  subject  to  replevin  at  the  suit 

III.  It  is  provided  tliat  sheriffs  or  bailiffs  from  hencefortli  shall  not 
only  receive  of  the  plaintiffs  pledges  for  the  pursuing  of  the  suit,  before 
they  make  deliverance  of  the  distress,  but  also  for  the  return  of  the  beasts 
if  return  be  awarded.  And  if  any  take  pledges  otherwise  he  shall  answer 
for  the  price  of  the  beasts,  and  the  lord  that  distrained  shall  have  his 
recovery  by  writ;  that  he  shall  restore  unto  him  so  many  beasts  or  cattle. 
And  if  the  bailiff"  be  not  able  to  restore,  his  superior  shall  restore.  And 
forasmuch  as  it  happencth  sometime  that  after  the  return  of  the  beasts  is 
awarded  unto  the  distrainor,  and  the  party  so  distrained,  after  the  beasts  be 
returned,  doth  replevy  them  again,  and  when  he  seeth  the  distrainor  ap- 
pearmg  in  the  court  ready  to  answer  him  does  make  default,  whereby  a 
return  of  the  beasts  ought  to  be  awarded  again  unto  the  distrainor,  and  so 
the  beasts  be  replevied  twice  or  thrice,  and  infmitely,  and  the  judgments 
given  in  the  King's  courts  take  no  effect  in  this  case,  whereupon  no  remedy 
hath  been  yet  provided;  in  this  case,  such  process  sliall  be  awarded,  that 
as  soon  as  the  return  of  the  beasts  shall  be  awarded  to  the  distrainor  the  sher- 
iff shall  be  commanded  by  a  judicial  writ  to  make  return  of  the  beasts  unto 
the  distrainor,  in  which  writ  it  shall  be  expressed  that  the  sheriff  shall  not 
deliver  them  without  writ  making  mention  of  the  judgment  given  by  the 
justices,  which  cannot  be  without  a  writ  issuing  out  of  the  rolls  of  the 
said  justices  before  whom  the  matter  was  moved.  Therefore,  when  he 
cometh  unto  the  justice  and  desireth  replevin  of  the  beasts,  he  shall  have 
a  judicial  writ  that  the  sheriff  taking  surety  for  the  suit,  and  also  of  the 
beasts,  or  cattle,  to  be  returned,  or  the  price  of  them  (if  return  be  awarded,) 
shall  deliver  unto  him  the  beasts  or  cattle  before  returned,  and  the  dis- 
trainor shall  be  attached  to  come  a  certain  day  before  the  justices  afore 
whom  the  plea  was  moved  in  the  presence  of  the  parties.  And  if  he  that 
replevied  make  default  again,  or  for  another  cause,  return  of  the  distress 
be  awarded;  being  now  twice  replevied,  the  distress  shall  remain  irreplev- 
iable.  But  if  a  distress  be  taken  of  new,  and  for  a  new  cause,  the  process 
aforesaid  shall  be  observed  in  the  same  new  distress  to  the  avowant,  and 
were  irrepleviable,  except  by  a  writ  mentioning  the  former  judgment, 
which  was  called  a  writ  of  second  deliverance. 

This  statute  is  local  to  Great  Britain  and  does  not  apply  in  this  country 
Daggett  V.  Robins,  3  Blackf  417. 


20  HISTOEICAL   INTEODUCTION. 

of  tbe  same  party,  except  upon  a  writ  of  second  deliverance 
which  recited  the  former  judgment,  and  this  writ  only  issued 
upon  cause  shown, »and  not  as  a  matter  of  course.  ^ 

§  28.  Statute  Charles  II.  The  Statute  of  Cliarles  II.,  Ch. 
7,  A.  D.  1665,  provided  that  when  the  plaintiff  in  replevin  was 
non-suited,  or  judgment  be  given  against  him,  a  writ  of  inquiry 
should  issue  to  ascertain  how  much  rent  was  in  arrear  to  the 
distrainor  and  also  the  value  of  the  distress,  and  he  was  entitled 
to  judgment  for  the  sum  due  as  rent,  or  to  so  much  as  the 
value  of  the  distress,  with  execution  therefor,  with  a  right  to 
distrain  again  for  the  amount  unpaid  and  in  arrear. 

§  29.  Statute  George  II.  The  Statute  11  George  II.,  Oh. 
19,  §  23,  provided  that  all  officers  grantmg  replevins  should,  in 
any  replevy  of  a  distress,  take  a  bond  from  the  plaintiff  with 
two  responsible  securities,  and  in  double  the  value  of  the 
goods,  conditioned  for  the  prosecution  of  the  suit  and  return 
of  the  goods  in  case  return  be  awarded,  and  provided  that  the 
sheriff  might  endorse  the  bond  to  the  avowant,  or  person 
making  cognizance,  who  might  sue  on  it  in  his  own  name,  and 
that  the  court  by  rule  should  give  such  relief  as  was  agreeable 
to  justice. 

§  30.  Conclusion.  This  brings  the  history  of  the  action 
down  to  a  comparatively  modern  time.  In  this  sketch  of  the 
history  of  the  law  of  replevin,  as  it  was  formerly  practiced, 
the  author  has  been  compelled  to  omit  all  details,  as  well  as 
many  matters  of  general  import;  he  has  endeavored  to  state 
only  sufficient  to  give  an  idea  of  the  origin  of  the  action,  and 
to  indicate  some  of  the  principal  steps  by  which  it  has  grown 
from  a  half  civilized  contest,  in  which  outrage  was  a  promi- 
nent ingredient,  in  cases  when  the  sole  question  was  the  right 
to  a  distress,  into  a  ready  instrument  for  the  settlement  of 
almost  all  disputes  concerning  the  ownership  and  possession 
of  personal  property. 

'  The  writ  of  replevin  was  a  writ  of  right,  and  issued  of  course.  The 
writ  of  second  delivery  was  a  writ  of  grace,  or  favor.    Anon,  2  Atk.  237. 


DEFINITION. 


21 


CHAPTEE    II. 


GENERAL  PRINCIPLES. 


Section. 
.    31 


Definition 

Replevin  lies  for  chattels  wrong- 
fully  taken  and  detained 

Recovery  of  specific  goods  the 
primary,  and  value  or  dam- 
ages the  secondary,  object 

It  is  a  mixed  action,  partly  in, 
rem  and  parly  in  personam    . 

The  writ  is  a  writ  of  right 

Form  of  proceeding  in  differ- 
ent States  substantially  the 
same 

Peculiarities  of  the  action;  priv- 
ileges  to  the  plaintiff 

Importance  of  the  action  . 

The  right  to  present  possession 
the  question  at  issue 

Statutory  provisions  concerning 
delivery 

Formerly,  would  lie  or.ly  for 
a  distress         .... 

The  same 42 

The  same 43 


32 


Section. 
Similarity  of  replevin  to  tres- 
pass, trover  and  detinue         .    44 
Characteristics,  compared  with 
those  of  trover  and  trespass  .    45 

The  same 46 

Distinctions  between  this  action 
and  trespass  and  trover  .        ,    47 

The  same 48 

The  same 49 

The  same 50 

Where  one  takes  forcible  pos- 
session of  his  own  property, 
he  is  not  liable  in  replevin  .  51 
Actual  detention  of  the  goods 
necessary  to  sustain  the  ac- 
tion   52 

Replevin   in  ce2nt,  detinet  and 

detinuet 53 

Wrongful  taking        .        .        .54 
The  scope  of  the  investigation  .    55 

The  same 56 

The  same 57 


§  31.     Definition.    Replevin  is  an  action  at  law  for  the  re- 
covery of  specific  personal  chattels ^    wrongfully  taken  and 


'  Rogers  v.  Arnold,  12  Wend.  34 ;  Hickey  v.  Hinsdale,  12  Mich.  100 ;  Men- 
delsohn «.  Smith,  27  Mich.  2;  Travers  v.  Inslee,  19  Mich.  101;  Bacon  ■p. 
Davis,  30  Mich.  157;  Badger  v.  Phinney,  15  Mass.  362;  Philips  v.  Harriss, 
3  J.  J.  Marsh.  (Ky.)  123;  Buckley  v.  Buckley,  9  Nev.  379;  McFerrin  v. 
Perry,  1  Sneed,  (Tenn.)  314;  Scott  v.  Elliott,  63  N.  C.  215;  Barksdale  ij. 
Appleberry,  23  Mo.  390.  "  The  only  effective  remedy  for  the  recovery  of 
personal  chattels.''  Kingsbury's  E.xrs.  v.  Lane's  Exrs.,  21  Mo.  115.  "  The 
object  of  the  writ  is  to  re-deliver  or  restore  goods  to  the  possession  of  the 


22  GENERAL   PRINCIPLES. 

detained,  or  wrongfullj  detained,  with  damages  which  the 
wrongful  taking  or  detention  has  occasioned.  ^ 

person  who  has  the  general  or  special  property."  Lathrop  v.  Cook,  14  Me. 
415.  To  same  eflcct,  Yates  v.  Fassett,  5  Denio,  21 ;  Pangburn  v.  Patrldge, 
7  John.  140;  Harwood  v.  iSmethurst,  5  Dutch.  (29  N.  J.  L )  197.  "  The  ap- 
propriate  remedy,  in  all  cases  where  the  plaintiff'  seeks  to  try  title  to  per- 
sonal property  and  recover  possession."  McKiuzie  v.  Bait.  &  Ohio  R.  R., 
28  Md.  161.  "  The  proper  remedy  in  all  cases  where  the  plaintiff'  has  a  right 
to  the  immediate  and  exclusive  possession  of  chattels  which  he  wishes  to 
recover."  Cullum  v.  Bevans,  6  Har,  &  J.  (Md.)  469;  Brooke  v.  Berry,  1 
Gill.  (Md.)  153;  Pattison  v.  Adam?,  7  Hill,  136;  Johnson  ».  Carnley,  6  Seld. 
(N.  Y.)  570;  Ilsley  v.  Stubbs,5  Mass.  280;  Badger  v.  Phinny,  15  Mass.  362; 
Baker  1).  Fales,  16  Mass.  147;  Shannon  v.  Shannon,  1  Sch.  &  Lef.  (Irish,) 
318;  Peirce  v.  Hill,  9  Port.  (Ala.)  151;  Shaddon  v.  Knott,  2  Swan,  (Tenn.) 
358;  Robinson  d.  Richards,  45  Ala.  354;  Town  v.  Evans,  1  English,  (6  Ark.) 
260;  Paul  v.  Luttrell,  1  Colorado,  317.  "The  action  has  been  liberally  ex- 
tended, and  now  embraces  every  case  of  personal  property  which  is  in  the 
possession  of  one  person  and  is  claimed  by  another."  Snyder  v.  Vaux,  2 
Rawle,  423.  See,  also,  Keite  v.  Boyd,  16  S.  &  R.  (Pa.)  300;  Sprague  ». 
Clark,  41  "Vt.  6 ;  Stoughtou  v.  Rappalo,  3  S.  &  R.  (Pa.)  559 ;  York  v.  Davis, 
11  N.  H.  241;  Harlan  v.  Harlan.  15  Pa.  St.  513;  Mackinley  ?;.  McGregor, 
3  Whart.  (Pa.)  369 ;  'W^oods  v.  Nixon,  Addis,  (Pa.)  134.  "Lies  at  the  in- 
stance of  a  party  where  property  has  been  improperly  seized  by  an  officer 
on  legal  process."  Gimble  v.  Ackley,  13  Iowa,  27;  Wilson  v.  Stripe,  4  G. 
Greene,  551 ;  Cooley  v.  Davis,  34  Iowa,  129;  Smith  v.  Montgomery,  5  Iowa, 
370;  Chinn  v.  Russell,  2  Blackf.  (Ind.)  176;  Marchman  v.  Todd,  15  Ga.  25; 
Miller  v.  Bryan,  3  Iowa,  58;  Shearick  v.  Huber,  6  Binn.  (Pa.)  3. 

'  Herdic  v.  Young,  55  Pa.  St.,  176;  Mitchell  v.  Burch,  36  Ind.  535;  New- 
ell V.  Newell,  34  Miss.  385;  Hotchkiss  v.  Jones,  4  Porter,  (Ind.)  260;  Hart 
V.  Fitzgerald,  2  Mass.  510;  Scott  v.  Elliott,  63  N.  C.  215;  Kendal  v.  Fitts.  2 
Foster,  (N.  H.)  1;  Cumberland  Coal  &  Iron  Co.  v.  Tilghman,  13  Md.  74; 
Messer  v.  Baily,  11  Foster,  (31  N.  H.)  9;  McKean  v.  Cutler,  48  N.  H.  371 ; 
Bell  V.  Bartlett,  7  N.  H.  178;  Peyton  v.  Robertson,  9  Wheat.  527 ;  Morgan  v. 
Reynolds,  1  Blake,  (Montana,)  164.  The  action  is  not  for  the  recovery  of 
damages  or  value,  except  as  an  incident  to  the  action  for  the  specific  thing; 
but  it  is  not  strictly  confined  to  the  recovery  of  the  thing,  nor  is  judgment 
for  the  property  essential.  Damages  may  sometimes  be  given  in  lieu  of  the 
property ;  otherwise,  upon  the  death  or  destruction  of  the  property,  pend- 
ing  the  suit,  the  action  would  fail.  Barksdale  v.  Appleberry,  23  Mo.  390; 
Mackinley  v.  McGregor,  3  Whart.  370.  And,  again,  if  one  hire  a  horse  for 
a  year,  and  pending  the  time  the  horse  be  taken  by  one  without  right,  the 
lessee  may  bring  replevin;  but  if  the  property  be  not  delivered  on  the 
writ,  and  after  the  year  expires,  and  before  judgment,  the  taker  surrenders 
it  to  the  owner,  the  lessee  may  recover  damages  for  the  detention,  but  not 
necessarily  judgment  for  the  property  or  its  value.  Cole  v.  Conolly,  16 
Ala.  271. 


RECOVERY   OF  SPECIFIC    GOODS.  23 

§  32.     Replevin  lies  for  chattels  wrongfully  detained.     It 

lies  for  all  goods  and  chattels  wrongfully  taken  or  detained,  and 
may  be  brought  whenever  one  person  claims  chattel  property 
in  the  possession  of  another,  whether  his  property  in  the  goods 
be  absolute  or  qualified,  provided  he  has  the  right  of  posses- 
sion at  the  time  the  suit  is  begun.  ^ 

§  33.  Recovery  of  specific  goods  the  primary  object,  and 
of  value  or  damages,  the  secondary.  The  primary  object  of 
the  action  is  to  recover  the  specific  chattels  which  have  been 
wrongfully  taken  or  detained. 2  Though  judgment  for  dama- 
ges usually  follows  a  judgment  for  the  property  as  a  matter  of 
course,  the  contest  is  about  the  specific  thing;  the  recover}^  of 
the  thing,  and  not  the  damages,  is  the  primary  object, ^  The 
secondary  object  is  to  recover  a  sum  of  money  which  shall  be 
equivalent  to  the  value  of  the  property  sued  for,  in  case  the 
property  itself  is  not  delivered  to  the  plaintiff  upon  the  writ; 
compensation  for  the  injury  which  the  plaintiff  has  sustained 
by  the  wrongful  detention  of  his  goods  is  also  recoverable,  as 
in  cases  when  the  goods  themselves  are  recovered.*     It  may 

»  Harlan  v  Harlan,  15  Pa.  Bt.  507;  Lazard  v.  Wheeler,  22  Cal.  140 
Weaver  0.  Lawrence,  1  Dall.  (Pa.)  156;  Clark  v.  Skinner,  20  Johns.  467 
Shearick  v.  Huber,  6  Binn.  3;  Stoughton  v.  Rappallo,  3  S.  &  R.  (Pa.j  562 
Williams  v.  West,  2  Ohio  St.  83.  The  action  was  formerly  limited  to 
cases  of  wrongful  distress,  but  has  long  since  outgrown  its  original 
limits,  and  now  lies  in  all  cases  of  unlawful  taking  and  detention  of 
goods.  Osgood  V.  Green,  10  Post.  (N.  H.)  210;  Daggett  v.  Kobins,  2 
Blackf.  (Ind.)  415;  Sprague  v.  Clark,  41  Vt.  6;  Chinn  v.  Russell,  2  Blackf. 
(Ind.)  172;  Meany  v.  Head,  1  Mason  C.  C.  319.  See  Bofil  v.  Russ,  3 
Strobh.  (S.  C)  98.  *'  It  lies  for  goods  unlawfully  detained,  though  there 
may  have  been  no  tortious  taking."  Marston  v.  Baldwin,  17  Mass.  609; 
Peirce  v.  Hill,  9  Port.  (Ala.)  151 ;  Paul  v.  Luttrell,  1  Colorado,  317.  Codtra, 
Cummings  v.  MacGill,  2  Murphey,  (N.  C.)  359 ;  Dickson  v.  Mathers,  Hempst. 
C.  C.  65;  Duffy  v.  Murrill,  9  Ired.  (N.  C.)  46.  "The  gist  of  the  action  is 
the  wrongful  detention.''  Benje  v.  Creagh's  Admrs.,  21  Ala.  151.  When 
goods  are  wrongfully  detained  upon  a  warrant  which  has  been  quashed  or 
set  aside  by  the  court,  replevin  lies  by  the  owner.  Slayton  v.  Russell,  30 
Ga.  127. 

«  Herdic  v.  Young,  55  Pa.  St.  176. 

*  Hunt  V.  Robinson,  11  Cal.  277;  Nickerson  v.  Chatterton,  7  Cal.  568 ; 
Buckley  v.  Buckley,  12  Nevada,  426. 

*  Ellis,  Admr.  of  Pritchard,  v.  Culver,  2  Harr.  (Del.)  129 ;  Hart  v.  Fitz- 
gerald, 2  Mass.  509 ;  Bruen  v.  Ogden,  6  Halst.  (IST.  J.)  371 ;  Buckley  v.  Buck- 


24  GENERAL   PEINCIPLES. 

be  said  to  be  the  proper  form  of  action,  in  all  cases  where  the 
plaintiff,  having  a  general  or  special  property,  with  the  right 
to  the  immediate  possession  of  chattels  personal  which  are 
wrongfully  detained  by  another,  desires  to  recover  the  specific 
goods,  and  this  without  reference  to  whether  they  were  wrong- 
fully taken  or  not.  The  wrongful  detention  of  another's  goods 
will  generally,  under  the  statutes  and  decisions  in  this  country, 
render  the  defendant  liable  in  this  action.* 

§  34.  It  is  a  mixed  action,  partly  in  rem  and  partly  in  per- 
sonam. It  is  a  mixed  action,  being  not  only  for  specific  articles 
but  for  damages  which  the  taking  and  detention  has  occa- 
sioned.^  It  is  a  proceeding  partly  in  rem  and  partly  in  per- 
sonam. Insomuch  as  it  seeks  the  return  of  specific  chattels  it 
is  a  proceeding  in  rein,  resembling  a  libel  in  a  court  of  ad- 
miralty, both  parties  being  claimants ;3  and  so  far  as  the  object 
is  to  obtain  a  judgment  against  the  defendant  for  damages 
is  a  proceeding  in  personam,^  and  can  be  brought  only 
against  the  person  having  possession  or  control  of  the  goods 
at  the  time  the  suit  is  begun.  The  writ  in  addition  to  the 
order  for  delivery,  contains  a  summons  to  the  defendant,  and 
if  the  plaintiff  does  not  obtain  delivery  of  the  goods  upon  the 
writ,  he  may  have  judgment  for  the  value  against  the  defend- 
ant personally.  5 

ley,  13  Nevada,  426 ;  Yates  v.  Fassett,  5  Denio,  21 ;  Bnrr  ■».  Daughertj,  21 
Ark.  559 ;  Gray  v.  Nations,  1  Ark.  559 ;  Whitfield  v.  Whitfield,  40  Miss.  352 ; 
Broadwater?).  Darne,  10  Mo.  278;  Loomis  v.  Tyler,  4  Day,  (Conn.)  141; 
Frazier  «.  Fredericks,  4  Zab.  (N.  J.)  163;  Smith  v.  Houston,  25  Ark.  184; 
Parham  v.  Riley,  4  Coldw.  (Tenn.)  5;  Stevens  v.  Tuite.  104  Mass.  332. 

1  Peirce  v.  Hill,  9  Port.  (Ala.)  151;  Brooke  v.  Berry,  1  Gill.  (Md.)  153; 
Marston  v.  Baldwin,  17  Mass.  609 ;  Paul  v.  Luttrell,  1  Colorado.  317 ;  Brownell 
V.  Manchester,  1  Pick.  233. 

»  Fisher  v.  Whoollery,  25  Pa.  St.  197;  Herdic  v.  Young,  55  Pa.  St.  176. 

3  Brown  v.  Smith,  1  N.  H.  38;  Wheeler  v.  Train,  4  Pick.  168;  FletcheriJ. 
Wilkins,  6  East.  283;  Sliarp  «.  Whittenhall,  3  Hill,  (N.  Y.)  576;  Eaton  «. 
Southby,  Willes,  131 ;  Baldwin  v.  Cash,  7  Watts  &  S.  425;  Lowry  v.  Hall,  2 
W.  &  S.  (Pa.)  132. 

*  Kamsdell  v.  Buswell,  54  Me.  547;  Biirr«.  Daugherty,  21  Ark.  559;  Dag- 
gett v.  Robins,  2  Blackf.  (Ind.)  416;  Stevens  v.  Tuite,  104  Mass.  332. 

6  Bower  ■».  Tallman,  5  W.  &  S.  (Pa.)  561.  In  some  of  the  States  the 
plaintiff  may  file  a  count  in  trover  for  such  goods  as  the  ofl3cer  returns  he 
cannot  find,  but  in  most  of  the  States  the  value  of  the  chattels  is  given  in 


FORM   OF   PKOCEEDING   IN   DIFFERENT   STATES.  25 

§  35.  The  writ  is  a  writ  of  right.  By  the  common  law  tlie 
writ  was  a  writ  of  right,  not  of  grace  or  favor, '  and  in  most 
of  the  States  the  common  law  is  recognized  as  the  foundation 
of  the  action,  the  statutes  only  adapting  the  remedy  to  the 
wants  of  modern  society.  ^ 

§  36.  Form  of  proceeding  in  different  States  substantially 
the  same.  So  far  as  its  name  is  concerned  this  action  has  been 
abolished  in  most,  if  not  all,  of  the  States  which  have  adopted 
a  code. 2  It  was  never  recognized  in  Alabama.'*  It  obtained 
a  foothold  in  Mississippi  only  after  a  struggle.  ^  In  Connec- 
ticut and  Vermont  it  was  formerly  allowed  only  in  cases  of 
distress  and  attachment. »  In  South  Carolina  the  writ  would 
only  lie  for  a  distress.'  In  Virginia  it  was  abolished  by  stat- 
ute, except  in  cases  of  distress.^  In  Louisiana,  where  the 
civil  law  prevails,  the  writ  is  unknown;  and  the  same  may  be 
said  of  Texas.  But  in  States  adopting  a  code,  provisions  are 
made  by  which  substantially  the  same  results  are  reached. 
This  is  done  by  what  is  claimed  to  be  a  more  simple  and 
equitable  proceeding,  and  one  in  which  the  same  principles 

the  form  of  damages  in  the  replevin  suit.  See  Greenwade  «.  Fisher,  5  B. 
Mon.  (Ky.)  167.  In  Minnesota  it  was  held  so  far  a  proceeding  in  rem  be- 
fore a  justice  of  the  peace  that  delivery  of  the  goods  was  necessary  to  give 
jurisdiction,  and  that  upon  a  return  of  "no  property  found"  the  justice 
could  not  proceed.  St.  Martin  v.  Desnoyer,  1  Minn.  41. 
'  Anon,  3  Atk.  237. 

*  Chadwick  v.  Miller,  6  Iowa,  34. 

«  "The  form  of  the  action  was  abolished  by  the  code,  but  the  principles 
which  governed  it  remain,  and  now,  as  much  as  formerly,  control  in  deter- 
mining the  riglits  of  parties.''  Eldridge  v.  Adams,  54  Barb.  417.  To  the 
same  elfcct,  Collins  v.  Hough,  26  Mo.  152;  Chadwick  v.  Miller,  6  Iowa,  34. 

4  Smith  «.  Crockett,  Minor,  (Ala.)  2T7,  (1824);  Peirce  ».  Hill,  9  Porter, 
(Ala )  155. 

6  In  Wheelock  v.  Cozzens,  6  How.  (Miss.)  281,  one  of  the  counsel  says  he 
would  as  soon  expect  to  see  the  court  recognize  the  obsolete  remedy  of 
wager  of  battle,  or  wager  of  law,  as  replevin.  See,  also,  a  similar  remark 
by  counsel  in  Virgina.    Nicolsou  v.  Hancock,  4  Hen.  &  M.  (Va.)  491. 

*  Watson  V.  Watson,  9  Conn.  140 ;  Watson  v.  Watson,  10  Conn.  75.  Against 
the  attachment  creditors,  and  not  against  the  officer.  Bowen  v.  Hutchiugs, 
18  Conn.  550;  Glover  «.  Chase,  27  Vt.  533. 

•>  Hewits(m  v.  Hunt,  8  Rich.  (S.  C.)  106.    See  Charleslon  v.  Price,  1  Mc- 
Cord,  299;  Byrd  v.  O'Hanlin,  1  Mill.  (S.  C.)  401. 
8  Vaiden  v.  Bell,  3  Rand.  (Va.)  448. 


26  GENERAL   PRINCIPLES. 

apply. *  In  Alabama  the  action  of  detinue  has  been  modified 
and  made  to  serve  the  same  purpose  as  replevin,  and  is,  in 
fact  governed  by  the  same  general  principles. ^  In  Georgia 
the  writ  is  called  "  possessory  warrant,"  and  differs  somewhat  in 
form  from  the  common  law  writ,^  while  Louisiana  and  Texas 
recognize  the  principles  which  govern  actions  of  replevin  in  a 
proceeding  by  sequestration.*  In  Yermont  and  Connecticut, 
as  a  suit  to  try  the  title  to  property,  it  has  only  been  allowed 
within  a  comparatively  recent  period. ^  In  Pennsylvania,  it 
is  said,  the  action  rests  solely  upon  the  local  statutes,  there 
being  no  right  to  proceed  under  the  common  law  or  the  Stat- 
ute of  Marlbridge,^  though  the  common  law  principles  apply. 
But,  whether  they  be  of  ancient  or  modern  origin,  all  laws 
governing  actions  for  tlie  recovery  of  specific  personal  chattels 
can  best  be  discussed  under  the  title  of  replevin. 

§  37.  Peculiarities  of  the  action ;  privileges  to  the  plaintiflT. 
There  are  some  peculiar  privileges  to  the  plaintiff  in  this  ac- 
tion. Upon  affidavit  being  filed  that  he  is  the  owner  of  the 
property  in  controversy,  and  entitled  to  its  immediate  posses- 
sion, he  can  demand  that  it  be  delivered  to  him  under  the  first 
process  issued  in  the  case,  leaving  the  title  or  right  of  posses- 
sion to  be  investigated  afterwards.  In  no  other  form  of  action 
has  the  plaintiff  this  right.'''  The  bond  which  the  plaintifl:'  is 
required  to  give  is  regarded  as  a  sufficient  indemnity  to  the 
defendant  in  case  the  result  of  the  trial  shall  show  the  title  of 

'  "The  name  replevin  is  mucli  more  convenient  and  suggestive  to  the 
profession  than  that  adopted  by  the  code."  Ames  v.  Miss.  Boom  Co.,  8 
Minn.  467.  See  Belkin  v.  Hill,  53  Mo.  493;  Pulis  v.  Bearing,  7  Wis.  221; 
Porter  v.  Willet,  14  Abb.  Pr.  Rep.  319;  Collins  v.  Hough,  26  Mo.  149;  Chad- 
wicli  V.  Miller,  6  Iowa,  34. 

2  Peirce  v.  Hill,  9  Porter,  (Ala.)  151 ;  Lawson,  Admrs.  «.  Lay,  Exrs.,  24  Ala. 
188. 

3  Mills  V.  Glover,  22  Geo.  322;  Stat.  Geo.  Title,  Poss.  War, 

4  Fowler  v.  Stonum,  6  Texas,  61 ;  Porter  v.  Miller,  7  Texas,  473. 
'Compare  CoUamer  v.  Page,  35  Vt.  387;  Bennett  ».  Allen,  30  Vt.  686; 

Glover  v.  Chase,  27  Vt.  533 ;  Sprague  v.  Clark,  41  Vt.  6. 

«  Weavers.  Lawrence,  1  Dall.  156;  English  v.  Dalbrow,  1  Miles,  (Pa.)  160. 

■"Hunt  v.  Chambers,  1  Zab.  (N,  J.)  624;  Yates  v.  Fassett,  5  Donio,  31; 
Kingsbury's  Exrs.  v.  Lane's  Exrs.,  21  Mo.  117;  Creamer  v.  Ford,  1  Heisk. 
(Tenn.)  308;  Lowry  v.  Hall.  2  W,  «&  S.  (Pa.)  129. 


IMPORTANCE   OF    THE   ACHOIir.  27 

the  latter  to  be  superior;  and  for  the  purpose  of  asserting  liis 
title,  the  defendant  is  permitted  to  set  it  up  by  his  pleading, 
and  to  claim  its  return,  and  to  require  the  plaintiff  to  prove 
affirmatively  his  title  or  right  to  possession  when  the  suit  was 
begun.  1 

§  38.  Importance  of  the  action.  The  remedy  has  been 
called  a  violent  one.^  The  transfer  of  the  subject  of  the  dis- 
pute from  the  defendant  to  the  plaintiff,  upon  the  first  process, 
leaving  the  question  of  title  to  be  determined  afterward,  is, 
without  doubt,  a  proceeding  liable  to  abuse,  and  has  probably 
been  made  use  of  to  deprive  the  real  owner  of  his  property; 
yet  it  has  frequently  been  found  to  be  the  only  remedy  of  any 
real  value  to  the  owner  of  property  which  has  been  wrong- 
fully taken  or  detained  from  him.  In  cases  where  the  defend- 
ant is  irresponsible,  or  where  the  identical  property  must  be 
put  to  some  special  immediate  use,  or  where  the  property  is 
an  heirloom,  or  has  some  peculiar  value  to  the  plaintiff,  the 
necessity  of  this  action  has  long  been  apparent.  Through  a 
series  of  legislative  acts,  and  the  liberal  construction  of  the 
courts,  it  has  become  a  common  remedy;  indeed,  almost  the 
only  effective  one  in  cases  wherein  the  plaintiff  is  entitled  to 
specific  chattels,  and  prefers  a  recovery  in  specie,  or  where,  for 
any  cause,  he  prefers  the  property  to  the  risks  to  which  the 
insolvency  or  knavery  of  the  defendant  might  expose  him, 
should  he  have  judgment  for  damages  only.^  It  is  sometimes 
the  only  adequate  remedy  of  any  kind  available  when  property 
is  withheld.  When  one  owns  goods  which  are  in  the  posses- 
sion of  another,  he  cannot  sue  in  assumpsit  for  them,  or  for 
their  value,  but  must  sue  for  them  in  replevin,  or  for  their 

»  Menuie  v.  Blake,  6  E.  &  B.  (88  E.  C.  L.)  843. 

*  Hutchinson  v.  McClellen,  2  Wis.  17.  See,  also,  Mennie  v.  Blake,  6  E.  & 
B.  (88  E.  C.  L )  846 ;  Tifft  v.  Verden,  11  S.  &  M.  (Miss.)  160.  Imprisonment 
is  sometimes  allowed.    Tomlin  v.  Fisher,  27  Mich.  525. 

3  Badger  V.  Phinney,  15  Mass.  362;  Town  v.  Evans,  1  Eng.  (Ark.)  263; 
Ames  ?).  Miss.  Boom  Co.,  8  Minn.  467;  Kingsbury's  Exrs. -y.  Lane's  E-xrs. 
21  Mo.  117;  Huntt).  Chambers,  21  N.J.  624;  Clark  v.  Skinner,  20  Johns. 
467 ;  Travers  v.  Inslee,  19  Mich.  101 ;  Weaver  v.  Lawrence,  1  Dall.  156.  Re- 
plevin  is  the  only  effective  remedy  when  the  goods  are  in  the  hands  of  a 
worthless  defendant.  Tibbal  v.  Cahoon,  10  Watts,  232;  Pettygrove  v.  Hoyt, 
11  Me.  66 ;  Mennie  v.  Blake,  6  Ell.  &  Bla.  (88  E.  C.  L.)  849. 


28  GENERAL  PRINCIPLES. 

value  in  trover.  In  the  latter  case,  if  the  defendant  is  insolv- 
ent, the  jadgineut  is  of  no  value,  and  the  plaintiff  is  subject 
not  only  to  the  loss  of  his  goods,  but  to  the  burden  of  a  suit.^ 

§  39.  The  right  to  present  possession  the  chief  question  at 
issue.  Though  conflicting  titles  may  well  be  settled  in  this 
form  of  proceeding,  it  is  chiefly  a  possessory  action,  the  right 
to  present  possession  of  the  property  being  the  principal 
question  in  controversy.^  And  where  the  title  is  investigated, 
it  is  frequently  with  a  view  to  determine  the  right  of  posses- 
sion, which  is  in  dispute  in  all  cases  of  replevin.  Ownership 
of  chattels  usually  draws  to  it  the  right  of  possession.  Proof 
of  ownership  would  warrant  the  inference  that  the  owner  was 
entitled  to  possession;  but  a  right  of  possession  may  be  shown 
independent  of  or  superior  to  the  owner's  rights.  Thus,  if  one 
hire  a  horse  for  a  stated  time,  and  the  owner  should  retake 
possession  while  the  contract  of  hiring  was  in  force,  the  hirer 
might  sustain  replevin. 

§  40.  Statutory  provisions  allowing  the  defendant  to  retain 
possession.  In  many  of  the  States  statutory  provisions  exist, 
whereby  the  defendant  is  allowed  a  reasonable  time  within 
which  to  give  bond  to  secure  the  plaintiff  and  retain  the  prop- 
erty in  his  own  possession  until  the  questions  at  issue  are 
determined.  This  eminently  just  provision  is  but  a  return  to 
the  principles  of  the  common  law  which  were  in  force  in  the 
earliest  times. ^ 

»  Creel  v.  Kirkham,47  111.  345;  Johnston  v.  Salisbury,  61  III.  317;  Beth- 
lehem, etc.,  V.  Perseverance  Fire  Co.,  81  Pa.  St.  446 ;  Gray  v.  Griffith,  10  Watts, 
(Pa.)  431 ;  Mendelsohn  v.  Smith,  27  Mich.  2.  See  the  old  case  of  Lindon  v. 
Hooper,  Cowp.  415,  where  it  was  held  that  if  a  party  pays  money  for  the 
release  of  his  cattle,  wroncifuUy  distrained,  he  cannot  recover  it. 

2  Heeron?;.Beckwith,  IWis.  20;  Rose  v.  Cash,  58  Ind.278;  Hunt«.  Cham- 
bers,  1  Zab.  (21  N.  J.)  624;  McCoy  v.  Cadle,  4  Clark,  (Iowa,)  557;  Johnson 
V.  Carnley,  6  Seld.  (N.  Y.)  578;  Corbitt  v.  Heisey.  15  Iowa,  296;  Seldner  v. 
Smith.  40  Md.  603 ;  Hickey  v.  Hinsdale,  12  Mich.  100;  Smith  «.  William- 
son, 1  Har.  &  J.  (Md.)  147;  Childs  v.  Childs,  13  Wis.  17;  Jackson  v.  Sparks, 
36  Geo.  445. 

3  Lisher  v.  Pierson,  11  Wend.  58;  Mitchell  v.  Hinman,  8  Wend.  667.  If 
the  defendant  claimed  the  property,  the  sheriff  could  proceed  no  further. 
The  writ  de  proprietate  probanda  was  then  sued  out  to  determine  the  owner, 
ship.    See  ante,  §  12. 


FORMERLY,    WOULD   LIE   ONLY   FOR    A   DISTRESS.  29 

§  41.  Formerly,  would  lie  only  for  a  distress.  Blackstone 
says  the  action  would  lie  only  for  the  recovery  of  a  wrongful 
distress.^  This  statement  has  been  criticised  in  a  number  of 
modern  cases. 2  While  there  is  nothing  in  the  form  of  the 
writ  which  necessarily  confines  it  to  cases  of  distress,'  there 
are  man}'-  excellent  reasons  for  accepting  the  statement  of  Jus- 
tice Blackstone  in  preference  to  his  critics.  All  the  early 
writers  speak  of  replevin  simply  as  the  remedy  for  a  wrongful 
distress,^  and  it  does  not  seem  to  be  referred  to  in  any  other 
connection  until  after  Blackstone  wrote,  "  A  replegari  lyetli, 
as  Littleton  here  teacheth  us,  when  goods  are  distrained  and 
impounded,"  etc.^  Britton,  one  of  the  earliest  authorities, 
lays  down  the  law  as  follows:  "But  to  the  intent  that  beasts 
and  other  distresses  may  not  be  long  detained,  we  have  granted 
that  the  sheriff,  by  simple  plaints  and  by  pledges,  may  deliver 
such  distresses."'  In  twenty-six  sections,  which  Britton  de- 
votes to  this  subject,  there  is  no  intimation  that  the  writ  would 
lie  for  any  other  pui*pose  than  the  recovery  of  a  distress.' 
Gilbert  treats  of  the  action  simply  as  the  remedy  for  the  recov- 
ery of  a  distress.  The  title  of  the  M'ork  usually  cited  as  Gil- 
bert on  lieplevin,  is,  "  The  Law  and  Practice  of  Distress  and 
Eeplevin."  The  second  chapter  of  this  work  begins  as  follows: 
"  Having,  in  the  foregoing  chapter,  shown  in  what  cases  a  dis- 
tress or  pledge  may  be  taken,  and  how  it  is  to  be  disposed  of, 
the  next  thing  in  order  to  be  treated  of  is  the  remedy  given 
the  party  to  controvert  the  legality  of  such  caption,  in  order 

'  3  Black.  Com.  146. 

«  Herdic  v.  Young,  55  Pa.  St.  177;  Daggett®.  Robins,  2  Blackf.  (Ind.)  416; 
Chinn  v.  Russell,  2  Blackf.  (Ind.)  173,  note  3;  Shannon  v.  Shannon,  1  Sch. 
&  Lef.  327;  Pangburn  v.  Patridge,  7  Johns.  140;  Bruen  v.  Ogden,  6  Halst. 
(N.  J,)  873;  Caldwell  v.  West,  1  Zab.  420;  Reist  v.  Heilbrenner,  11  S.  &  R. 
(Pa.)  132.  The  old  authorities  are,  that  replevin  lies  only  for  goods  taken 
tortiously.  Harwood  v.  Smethurst,  29  N.  J.  L.  195 ;  CuUum  v.  Bevans,  6 
Har.  &  J.  (Md.)  469. 

'  See  ante,  §  11,  note  1. 

<  Britton,  Vol.  1, 136,  et  seq.;  F.  N.  B.  156;  Gilbert  on  Replevin;  Cowell 
Interp.  Title  Replevin. 

»  Co.  Litt.  1456. 

•  Britton.  Nichols'  Trans.  Vol.  1  p.  136. 

'  This  agrees  with  Bracton,  105&,  and  Fleta,  94a. 


80  GENERAL    PRINCIPLES. 

to  bring  back  the  pledge  to  the  proprietor  in  case  the  distress 
were  unlawfully  taken,  and  without  just  cause.''^ 

§  42.  The  same.  Of  something  like  a  hundred  cases  re- 
ported in  the  time  of  Edward  I.,  not  one  is  believed  to  exist 
that  was  for  any  other  cause  than  the  recovery  of  a  distress. ^ 
The  name  replevin,  from  replegari^  to  "  take  back  the  pledge," 
renders  it  almost  certain  that  the  action  was  originally  used  to 
recover  goods  wrongfully  seized  as  a  pledge  or  security;  such 
seizures,  in  the  ancient  law,  were  always  called  distresses.  Con- 
sidering these  authorities,  together  with  the  fact  that  the  an- 
cient common  law  gave  an  appeal  of  felony  in  cases  where 
goods  were  seized  otherwise  than  as  a  distress,  as  well  as  for 
goods  which  the  distrainor  claimed  to  own;^  also,  that  tlie 
action  of  detinue  was  for  goods  bailed  to,  and  wrongfully  de- 
tained by,  the  defendant,  and  that  the  action  of  trover  enabled 
the  plaintiif  to  recover  the  value  of  goods  wrongfully  converted, 
replevin  seems,  by  the  harmony  of  the  ancient  law,  confined 
solely  to  cases  of  distress. * 

§  43.  The  same.  Viewed  in  the  light  of  these  authorities, 
it  would  seem  that  replevin  by  the  common  law  was  an  action 
to  test  the  legality  of  a  distress;  that  it  would  lie  in  no  other 
case;  and  it  admits  of  no  doubt  that  under  the  statutes  and 
decisions  of  the  courts  in  modern  times,  the  settled  and  prevail- 
ing doctrine  is  that  the  action  lies  for  any  wrongful  taking 
or  unlawful  detention  of  the  goods  of  another. ^ 

>  See,  also,  Mennie  v.  Blake,  6  Ell.  &  Bla.  (88  E.  C.  L.)  842.  Replevin  is  a 
personal  action,  to  try  the  legality  of  a  distress.  Eaton  v.  Southby,  Willes, 
134.  See,  also,  Ilsley  v.  Stubbs,  5  Mass.  280;  Bro.  Abr.  &  Roll.  Abr.;  Cow- 
ell's  Interp. ;  Jacobs'  Law  Die,  this  title. 

^  Year  Books,  Edward  I.,  passim. 

2  See  ante,  §  1,  note  2,  and  §  12  and  notes. 

*  The  Statute  11  Geo.  II.,  Ch.  19,  providing  for  bond,  applies  only  in  cases 
of  replevin  of  distress  for  rent.  Knapp  v.  Colburn,  4  Wend.  618;  Statute 
11  Geo.  II..  Ch.  19. 

6  In  addition  to  cases  before  cited,  see  Pangburn  v.  Patridge,  7  Johns. 
140;  Hopkins  v.  Hopkins,  10  Johns.  369;  Gardner  «.  Campbell,  15  Johns. 
401 ;  Cullum  v.  Bevans,  6  H.  &  J.  (Md.)  469 ;  Clark  v.  Skinner,  20  Johns.  467 ; 
Rogers  v.  Arnold,  12  Wend.  30;  Wheeler  v.  McFarland,  10  Wend.  318;  lis- 
ley  V.  Stubbs,  5  ]\Ias3.  283 ;  Benje  v.  Creagh's  Admr.  21  Ala.  151 ;  Trapnall 
V.  Hattier,  1  Eng.  (Ark.)  21 ;  Dudley  v.  Ross,  27  Wis.  680. 


SIMILARITY    OF   THIS   ACTION    TO    TRESPASS,    ETC.  31 

§  44.  Similarity  of  this  action  to  trespass,  trover  and  det- 
inue. A  clearer  understanding  of  the  law  of  replevin  will  be 
gained  by  considering  it  as  belonging  to  the  same  class  of 
cases  as  trespass,  trover  and  detinue;  that  while  the  form  of 
proceeding  is  different,  and  the  results  are  not  the  same,  these 
actions  are  strictly  analagous  in  all  their  governing  principles.^ 
"Eeplevin  at  common  law  is  distinguished  from  trespass," 
says  Coleridge,  J.,  "in  this,  among  other  things,  that  while 
the  latter  is  intended  to  procure  compensation  in  damages  for 
goods  wrongfully  taken  out  of  the  actual  or  constructive  pos- 
session of  the  plaintiff,  the  object  of  the  former  action  is  to 
procure  the  restitution  of  the  goods  themselves,  and  it  effects 
this  by  a  preliminary  ex  'parte  interference  by  the  officers  of 
the  law  with  the  possession.  *  *  *  As  a  general  rule,  it 
is  just  that  a  party  in  the  peaceable  possession  of  goods  should 
remain  undisturbed,  either  by  parties  claiming  adversely,  or 
by  the  officers  of  the  law,  until  the  i*ight  be  determined  and 
the  possession  shown  to  be  unlawful;  but  where,  either  by  dis- 
tress or  by  merely  a  strong  liand,  the  peaceable  possession  has 
been  disturbed,  an  exceptional  case  arises,  and  it  is  thought 
just  that  even  before  any  determination  of  the  right  the  law 
should  interfere  to  place  the  parties  in  the  condition  in  Avhich 
they  were  before  the  act  was  done,  security  being  taken  that 
the  right  shall  be  tried  and  the  goods  forthcoming  to  abide  the 
decision. "2 

•Holbrook  v.  Wight,  24  Wend.  169;  Marshall  t.  Davis,  1  Wend.  109; 
Wickliffe  -c.  Sanders.  6  T.  B.  Mon.  (Ky.)  296;  Chapman  v.  Andrews,  3 
Wend.  242;  Heard  v.  James,  49  Miss.  236;  Rogers  v.  Arnold,  12  Wend.  30; 
Briggs  V.  Gleason,  29  Vt.  78;  Rector  v.  Chevalier,  1  Mo.  345. 

« Mennie  v.  Blake,  6  Ellis  &  B.  (88  E.  C.  L.)  842.  "  It  bears  a  strong  re- 
semblance to  trover."  Hisler  v.  Carr,  34  Cal.  641.  The  rule  in  trespass 
and  trover  which  allows  a  return  to  be  shown  in  mitigation  of  damages  is 
applicable  to  replevin;  exceptions  stated.  Cary  v.  Hewitt,  26  Mich.  228. 
"The  same  principles  govern  in  trover  and  replevin.''  Parmalee  v.  Loomis, 
21  Midi.  243.  "When  the  taking  was  illegal  the  action  was  by  replevin; 
when  detention  only  was  complained  of  the  remedy  was  by  detinue."  Dame 
X).  Dame,  43  N.  H.  37.  "  The  action  is  like  trover  in  principle."  Sanford 
Manf'g  Co.  n.  Wiggin,  14  N.  H.  441.  "Where  trespass  or  trover  lies  for 
the  conversion,  replevin  will  lie  for  the  goods.''  Sawtelle  t).  Rollins,  23 
Me.  196.    See,  also,  Shannon  t.  Shannon,  1  Sch.  &  Lef.  324;  Clark  v.  Skin- 


32  GENERAL    PEINCIPLES. 

§  45.  Characteristics  of  this  action  compared  with  those 
of  trover  and  trespass.  Trover,  by  the  coniraon  law,  supposed 
a  casual  loss  by  the  plaintiff,  and  a  finding  and  conversion  by 

ner,  20  Johns.  467;  Rowell  v.  Klein,  44  Ind.  294;  "Vanderburgh  v.  Bassett,  4 
Minn.  243.  "Same  proof  required  as  in  trover."  Ingalls  ».  Bulkley,  13 
111.317.  "Replevin  and  trover  concurrent;  diflerent  in  judgment  only." 
Allen  V.  Crary,  10  Wend.  349 ;  Beebe  v.  De  Baun,  3  Eng.  (Ark.)  510.  "  Anal- 
agous  to  trespass."  Daggett  v.  Robins,  2  Blackf.  (Ind.)  416.  "  The  meas- 
ure of  damages  is  found  bj'  processes  analagous  to  those  in  actions  for  tres- 
pass.''  Phillips  v.  Harris,  3  J.  J.  Marsh,  123;  Warner  v.  Matthews,  18  111. 
83.  "  For  any  unlawful  taking  of  chattels  out  of  the  possession,  actual  or 
constructive,  of  another,  the  injured  party  may  have  trespass  de  bonis,  or 
replevin,  at  his  election."  Ely  v.  Ehle,  3  Comst.  (N.  Y.)  507.  "  Ordinarily 
where  replevin  will  lie  trover  will  lie."  Pace  v.  Pierce,  49  Mo.  393.  "Re- 
plevin in  the  cepit  lies  only  where  trespass  might  have  been  brought." 
Rich  V.  Baker,  3  Denio,  80.  "The  same  general  principles  regulate  tres- 
pass, trover  and  replevin."  Whitfield  v.  Whitfield,  40  Miss.  367.  "Judg- 
ment in  trespass  is  a  bar  to  replevin  for  same  goods."  Cofl3n  v.  Knott,  3 
Greene,  (Iowa,)  582;  Karr  v.  Barstow,  24  111.  580.  "Trespass  and  replevin 
are  concurrent."  Gallagher  v.  Bishop,  15  Wis.  276.  "  The  action  is  ranked 
■with  trespass  and  trover."  Crocker  v.  Mann,  3  Mo.  473;  Walpole  v.  Smith, 
4  Blackf.  (Ind.)  304.  Same  principles  apply  as  in  trover.  Gerber  v.  Monie, 
56  Barb.  652.  The  action  of  detinue,  or  of  replevin,  asserts  a  continuing 
property  in  the  plaintiflf,  while  trover  proceeds  on  the  assumption  that  by 
a  wrongful  conversion  the  defendant  has  become  the  owner,  and  seeks  dam- 
ages which  the  conversion  has  occasioned.  McGavock  v.  Chamberlain,  20 
111.  220.  Replevin  is  by  statute  made  a  substiute  for  detinue  and  trover. 
Wright  V.  Bennett,  3  Barb.  451.  Consult,  in  this  connection.  Porter  v.  Mil. 
ler,  7  Texas,  473;  Seaver  v.  Diugley,  4  Gr.  (Me.)  306;  Grace  v.  Mitchell,  31 
Wis.  533;  Childs  v.  Childs,  13  Wis.  17;  Sharp  v.  Wittenhall,  3  Hill,  (N.  Y.) 
576;  Brockway  v.  Burnap,  12  Barb.  351;  Rich  v.  Baker,  3  Denio,  79;  Max- 
ham  V.  Day,  16  Gray,  (Mass.)  213;  Newman  v.  Jenne,  47  Me.  520;  Mitchell 
V.  Roberts,  50  N.  H.  490;  Angell  v.  Keith,  24  Vt.  373;  Overfield  v.  Burlitt,  1 
Mo.  749;  Gray  t.  Nations,  1  Ark.  558;  Jocelyn  v.  Barrett,  18  Ind.  128;  Burr 
V.  Daugherty,  21  Ark.  559;  Heard  v.  James,  49  Miss.  246;  Chinn  v.  Russell, 
2  Blackf.  (Ind.)  174;  Bethea  i3.  M'Lennon,  1  Ired.  (N.  C.)  523;  Stockwell  v. 
Phelps,  34  N.  Y.  Ct.  Appeals,  363;  Wheeler  v.  McFarland,  10  Wend.  318. 
Trespass,  replevin  and  trover  are  concurrent  remedies  if  an  owner  has  the 
immediate  right  of  possession.  Stanley  v.  Gaylord,  1  Cush.  536.  Tres- 
pass lies  for  any  unlawful  interference  with,  or  dominion  over,  the  goods 
of  another  —  Hardy  v.  Clendening,  25  Ark.  440;  Ralston  v.  Black,  15  Iowa, 
47;  Reynolds  v.  Shuler,  5  Cow.  325;  Hurd  ©.West,  7  Cow.  753;  Gibbs  «. 
Chase,  10  Mass.  125;  Phillips  v.  Hall,  8  Wend.  610;  Coffin  v.  Field,  7  Cush. 
355;  Phillips  v.  Harris,  3  J.  J.  Marsh,  (Ky.)  122  —  and  if  the  trespasser 
take  possession  of  goods,  replevin  was  always  a  concurrent  remedy.  Cum- 
mings  V.  Vorce,  3  Hill,  282;  Dunham  v.  Wyckoff,  3  Wend.  280;  Brockway 


CHARACTERISTICS   OF   THIS    ACTION    COMPARED.  33 

the  defendant.^  The  distinction  between  trover  and  replevin 
consists  mainlj  in  the  fact  that  replevin  is  a  possessory  action, 
while  trover  is  based  on  a  right  of  property,  and  requires  own- 
ership, either  general  or  special,  to  support  it.  The  right  of 
possession  figures  in  the  action  of  trover  only  as  it  forms  an 
incident  to  the  title. ^  Trespass  lies  for  any  unauthorized  inter- 
ference with  the  goods  of  another.  In  trover  there  must  be  a 
conversion. 3  In  other  respects  the  actions  are  very  similar. 
Detinue  was  for  the  detention,  and  at  common  law,  supposed 
a  bailment  of  goods  by  the  plaintiff  to  the  defendant,  and  a 
refusal  to  deliver  them  after  proper  request.*  In  trespass  the 
defendant  was  liable  if  he  took  the  goods  even  for  an  instant; 
and  an  offer  to  return,  accompanied  by  a  tender  of  the  goods, 
was  no  defense.  In  trover  the  defendant  was  not  liable  unless 
there  was  an  actual  conversion.  If  the  defendant  surrender 
the  goods  on  request,  he  is  not  liable  in  trover. 

§  46.  The  same.  Replevin  was  formerly  based  upon  a  sup- 
posed wrongful  taking  of  the  plaintiflf's  goods.  Authorities  in 
recent  times  have  held  that  it  would  not  lie  at  common  law, 
except  in  cases  where  there  has  been  a  wrongful  taking.  ^  The 
whole  theory  of  the  action  is  based  upon  the  assumption 
that  the  plaintiff  has  a  general  or  special  property  in  the 
goods  in  dispute,  as  well  as  a  right  to  their  immediate  pos- 
session, and  that   the  defendant  wrongfully  took  or  wrong- 

V.  Burnap,  12  Barb,  347;  Marshall  v.  Davis,  I  Wend.  110;  Allen  v.  Crary, 
10  \Vend.  349;  Hostler  v.  Skull,  Faylor,  (N.  C.)  lo2. 

>  3  Black.  Com.  151. 

«  Burdick  v.  McVanner,  2  Denio,  171 ;  Heyland  o.  Badger,  35  Cal.  404 ; 
Ward  V.  Macauley,  4  Term  Rep.  260,  488.  Compare  Waterman  v.  Robinson, 
5  Mass.  304.  So,  in  trespass,  the  plaintiff  must  aver  and  prove  title.  Car- 
lisle V.  Weston,  1  Met.  (Mass.)  26. 

3  Price  V.  Helyer,  4  Bing.  597. 

*  3  Black.  Com.  155 ;  Selw.  N.  P.  657 ;  Fitz  N.  B.  323 ;  Y.  B.  6  H.  7,  9 ;  Law- 
son  V.  Lay,  24  Ala.  188;  Schulenberg  v.  Campbell,  14  Mo.  491. 

6  Pirani  v.  Barden,  Pike,  (5  Ark.)  84;  Wallace  v.  Brown,  17  Ark.  452; 
Neff  V.  Thompson,  8  Barb.  215;  Marshall  v.  Davis,  1  Wend.  113;  Wood- 
ward V.  Railway  Co.,  46  N.  H.  525 ;  Smith  v.  Huntington,  3  N.  H.  76 ;  Whee- 
lock  V.  Cozzens,  6  How.  (Miss.)  280;  Miller  v.  Sleeper,  4  Cush.  370;  Rams- 
dell  V.  Buswell,  54  Me.  548 ;  Chinn  v.  Russell,  2  Blackf.  176,  note  3 ;  Vaiden 
V.  Bell,  3  Randolph,  448;  Watson  v.  Watson,  9  Conn.  140;.  Drummond  v. 
Hopper,  4  Harr.  (Del,)  327. 
3 


o4  GENERAL   PKINCIPLES. 

fully  detained  them  from  him;i  and  npon  this  assumption  the 
law  steps  in  and  restores  the  property  to  the  original  possessor, 
upon  his  giving  bond  to  make  good  his  claim  to  the  property.^ 

§  47.  Distinction  between  this  action  and  trespass  and 
trover.  "While  replevin  has  a  strong  resemblance  to  detinue, 
trespass  and  trover,  as  has  been  shown  in  the  preceding  sec- 
tions, yet  there  are  certain  points  of  distinction  whicli  it  is 
important  to  observe.  One  of  the  principal  differences  is,  that 
in  replevin  the  property  in  dispute  may  be  delivered  to  the 
plaintiff  upon  the  first  process  in  the  case,  while  in  the  com- 
mon law  action  of  detinue,  the  property  is  not  delivered  until 
after  judgment. ^  In  trespass  and  trover  the  property  was 
never  delivered  to  plaintiff.  In  each  of  these  actions  he  seeks 
only  to  recover  the  value  of  his  goods,  and  damages  for  the 
injury  to  or  conversion  of  them.  These  distinctions,  however, 
only  apply  to  the  effect  of  the  remedy;  not  to  the  principles 
which  govern  in  determining  the  question  of  right. 

§  48.  The  same.  Replevin  may  frequently  be  sustained  in 
cases  where  trespass  will  not  lie.  Thus,  it  is  essential,  to  sus- 
tain trespass,  that  there  should  be  some  proof  that  the  defend- 
ant has  in  some  way  interfered  with  the  plaintiff's  goods,  or 
done  some  act  in  some  way  wrongfully  interfering  with  the 
plaintiff's  possession.*  Simple  omission  or  refusal  to  deliver 
goods  rightfully  in  the  defendant's  possession  would  not  be  an 
act  of  trespass,  but  such  refusal  might  furnish  ample  grounds 
to  sustain  an  action  of  replevin  for  the  detention,  or  trover  for 
their  value. ^  Again,  trespass  will  not  lie  against  one  who 
comes  rightfully  into  the  possession  of  the  goods  of  another, 
even  though  it  should  turn  out  that  the  party  who  delivered 
them  to  him  was  a  wrongdoer.^     So,  when  a  bailee  of  goods 

>  Hunt  V.  Chambers,  1  Zab.  (21  N.  J.)  634. 
s  Mennie  v.  Blake,  G  Ell.  &  B.  (88  E.  C.  L.)  850. 

8  Cox  V.  Morrow,  14  Ark.  608;  Badger  v.  Phinney,  15  Mass.  363;  Robin- 
son V.  Richards  45  Ala.  358;  3  Black.  Com.  153. 

*  Grace  v.  Mitchell,  81  Wis.  536. 

'  See  Isaac  v.  Clark,  3  Bulst.  310.  Sometimes  cited  as  Thimblethorp's 
Case. 

•  Barrett  v.  Warren,  3  Hill,  (N.  Y.)  348;  Wilson  v.  Barker,  4  Barn.  &  Adol 
(24  E.  C.  L.;  614. 


DIFFERENCE    BETWEEN    REPLEVIN    AND    TRESPASS.  35 

sells  and  delivers  them  without  authority,  such  sale  and  deliv- 
ery conveys  no  title  to  the  purchaser;  and  though  replevin 
would  lie  at  the  suit  of  the  rightful  owner,  trespass  would  not 
lie.  If,  however,  no  delivery  of  the  goods  accompany  such 
sale,  and  the  purchaser  take  possession  by  his  own  wrong,  tres- 
pass or  replevin  for  the  wrongful  taking  would  lie,  at  the  election 
of  the  injured  party. ^ 

§  49.  The  same.  If  an  infant  sell  his  goods  and  deliver 
them  with  his  own  hand,  though  the  act  be  voidable  and 
replevin  lies,  yet  he  could  not  recover  in  trespass.  If,  how- 
ever, the  vendee  should  take  them  by  force,  trespass  would  lie, 
notwithstanding  the  sale.^  In  a  case  where  the  action  was  in 
the  cepit  for  barrels  of  flour  sold  by  a  carrier  without  author- 
ity, and  the  defendant  pleaded  non  cepit,  with  notice  that  he 
should  claim:  1st,  that  the  property  was  his;  2d,  that  it  was 
the  property  of  the  carriers,  and  3d,  that  the  carrier  had  the 
right  of  possession.  On  the  trial  the  defendant  proved 
that  he  purchased  the  flour  in  good  faith,  for  a  fair 
price,  from  II.,  the  captain  of  a  canal  boat,  but  it  was 
held  that  under  the  plea  of  no7i  cepit  the  title  was  not 
put  in  issue;  that  proof  of  purchase  from  H.  was  imma- 
terial unless  defendant  showed  that  H.  was  authorized  to  sell; 
that  there  was  no  proof  of  delivery,  but  only  of  sale  by  the 
carrier,  the  flour  being  found  in  the  defendant's  possession, 
the  action  for  taking  was  properly  brought,  and  the  plaintiif 
recovered. 3  Again,  in  replevin  the  plaintiflf  is  bound  to  take 
the  goods  he  sues  for  when  delivered  to  him  by  the  oflicer, 
even  though  they  be  in  a  damaged  condition.*  But  in  tres- 
pass the  plaintiff  is  not  bound  to  take  the  goods,  but  may 
insist  on  judgment  for  value. ^ 

§  50.  The  same.  Another  important  distinction  is,  that  in 
order  to  sustain  replevin,  the  defendant  must  have  the  actual 

>  Marshall  v.  Davis,  1  Wend.  109;  Nash  v.  Mosher,  19  "Wend.  431;  Bar- 
rett  V.  Warren,  3  Hill,  348. 

2  Fonda  «.  Van  Horn,  15  Wend.  631 ;  Roof  v.  Stafford,  7  Cow.  (N.T.)  179 
and  note,  citing  many  cases  on  the  law  of  infancy. 

s  Ely  t.  Ehle,  3  Comst.  (N.Y.)  506. 

<  Allen  V.  Fox,  51  N.Y.  564. 

*  Robinson  v.  Mansfield,  13  Pick.  144. 


36  GENERAL    PRINCIPLES. 

or  constructive  possession  of  the  goods  at  the  time  suit  is 
commenced;  in  otlier  words,  he  must  be  in  a  condition  to 
deliver  tlio  property  when  called  on  by  the  officer,  in  obedience 
to  the  command  of  the  writ.^  Thus,  when  a  creditor  in  an 
execution  directs  the  sheriff  to  levy  on  certain  propert}',  and 
the  sheriff  does  so  and  takes  possession  of  it,  the  sheriff  and 
the  creditor  in  execution  may  both  be  liable  in  trespass;  but 
the  sheriff  having  possession  of  the  property  would  alone  be 
liable  in  replevin. 2 

§  51.  Where  one  takes  forcible  possession  of  his  own 
property,  he  may  be  liable  in  trespass,  but  not  in  replevin. 
Where  a  person  takes  forcible  possession  of  his  own  goods,  lie 
may  be  liable,  in  certain  cases,  as  a  trespasser,  but  not  in 
replevin;  having  the  right  of  possession  at  the  time  of  tlie 
seizure,  his  trespass  does  not  debar  him  from  the  right  of 
possession,  nor  vest  the  other  party  with  the  right  to  retake 
the  goods.  3 

1  Lathrop  v.  Cook,  2  Sliep.  (14  Mc.)  415;  Richardson  v.  Reed,  4  Grey,  443; 
Hickey  «.  Hinsdale,  13  Mich.  100;  Ramsdell  v.  Buswell,  54  Me.  546.  To 
this  rule  some  exceptions  have  been  stated,  as  where  the  defendant  had 
possession  of  the  goods  at  one  time,  but  had  purposely  put  them  out  of  hid 
hands  to  defeat  the  plaintiff.  Ellis  v.  Lersner,  48  Barb.  539;  Brockway  v, 
Burnap,  16  Barb.  309.  See  post,  %  145.  While  in  trespass  the  defendant  may 
never  have  had  possession.  Trover  may  be  sustained  where  the  defendant 
once  possessed  the  goods,  but  has  disposed  of,  or  has  destroyed  or  made  way 
with  them  before  suit  brought.  Richardson  ?>.  Reed,  4  Gray,  443;  Taylor 
V.  Trask,  7  Cow.  249;  Woolbridge  v.  Conner,  49  Me.  353;  McNeeley  v.  Hun- 
ton,  80  Mo.  333;  Wickliffe  v.  Sanders,  6  T.  B.  Mon.  (Ky.)  296;  Kregcr  v. 
Osborn,  7  Blackf.  (Ind.)  74. 

2  Grace  v.  Mitchell,  31  Wis.  533;  Coply  v.  Rose,  2  Comst.  115;  Mitchell  v. 
Roberts,  50  N.  H.  486.  Contra,  see  Allen  v.  Crary,  10  Wend.  349.  The 
point  was  made  in  a  case  in  New  York  that  the  plaintiff  in  execution  who 
had  done  nothing  except  to  direct  the  sheriff  to  levy,  had  never  had  pos- 
session of  the  goods,  and  therefore  could  not  be  a  defendant  in  replevin, 
but  the  court  followed  Allen  0.  Crary,  10  Wend.  349,  and  held  that  this  was 
a  sufficient  proof  of  taking  to  enable  the  owner  to  bring  replevin.  Knapp 
V.  Smith,  27  N.Y.  280. 

3  Taylor  v.  Welbey,  36  Wis.  43;  Carroll  v.  Pathkiller,  3  Porter  (Ala.)  279; 
Neely  v.  Lyon,  (18  Tenn.)  10  Yerg.  473;  Bogard  v.  Jones,  9  Humph.  (Tenn.) 
739;  Hodgcden  v.  Hubbard,  18  Vt.  504;  Owen  v.  Boyle,  22  Me.  67;  Kurd  v. 
West,  7  Cow.  753;  Spencer  v.  McGowen,  13  Wend.  256;  Coverlee  v. 
Warner,  19  Ohio,  29;  Marsh  z).  White,  3  Barb.  518;  Collomb  «.  Taylor,  9 
Humph.  (Tenn.)  689. 


EEFLEVIN   IN    CEPIT,    DETINET   AND   DETINUET.  6i 

§  52.  Actual  detention  of  the  goods  necessary  to  sustain 
replevin.  While  proof  of  a  wrongful  or  forcible  taking  from 
the  plaintiff's  possession,  may  be  snfBcient  to  sustain  tres- 
pass, it  will  not  always  be  sufficient  to  sustain  replevin, 
without  proof  of  an  actual  detention  of  the  goods  by  the 
defendant  at  the  time  tlie  suit  was  brought.  For  instance,  if 
the  defendant  should  show  that  before  the  suit  was  brought 
he  returned  the  goods  to  the  plaintiff,  proof  of  the  fact  that 
he  had  taken  them  by  force  would  not  justify  a  finding  against 
him  in  replevin.  ^  So,  a  levy  by  an  officer  not  authorized  by 
law  is  a  trespass,  and  an  action  may  be  sustained  without 
proof  of  a  removal  of  the  goods. ^  But  replevin  would  not 
lie  unless  the  officer  should  remove  the  property,  or  should 
have  the  possession  of  the  goods  at  the  time  the  suit  was 
brought.  3 

§  53.  Heplevin  in  cepit,  detinet  and  detinuet.  The  action 
is  frequently  spoken  of  as  replevin  in  the  cepit  and  in  the 
detinet.  There  was  formerly  a  distinction  between  these, 
amounting  to  more  than  a  form  of  pleading.  The  old  style 
of  declaration,  in  case  the  goods  were  not  delivered  on  the 
writ,  was  *  -5^  *  "Wherefore,  he  took,  and  until  now 
unjustly  detains,"  etc.  When  the  goods  were  delivered  on  the 
writ  the  form  was,  "Wherefore,  he  took  and  unjustly  de- 
tained," etc.*  Replevin  the  ce2)it  is  simply  for  the  wrongful 
taking,  from  capio  in  Latin,  "to  take;"  and  replevin  in  the 
detinet  is  for  the  detention  of  goods  only,  detinet  being  from 
de  and  teneo,  "  to  hold."  This  distinction,  though  not  of  as 
much  importance  as  formerly,  should  still  be  kept  in  mind.^ 
There  is  another  technical  distinction  between  the  action  in 
the  detinet  and  in  the  detinuet,  the  former  signifying  "he  de- 
tains," and  the  latter  "he  detained."  The  latter  form  in  the 
declaration  imports  that  the  goods  have  been  delivered  to  the 

»  Paul  V.  Luttrell,  1  Colorado,  318.     See  post,  §  134,  and  following. 

2  Allen  V.  Crary,  10  Wend.  349;  Wheeler  d.  McFarland,  10  Wend.  322; 
Neft"  v.  Thompson,  8  Barb.  215. 

3  English  V.  Dalbrow,  1  Miles,  (Pa.)  IGO. 

«  Harwood  v.  Smethurst,  5  Dutch.  (29  N.  J.)  203. 

»  Pierce  «.  Van  Dyke,  0  Hill,  G13;  Olesoa  v.  Merrill,  20  Wis.  462;  Cum- 
miugs  V.  Vorce,  3  Hill,  282. 


38  GENERAL    PRINCIPLES. 

plaintiff  upon  his  writ;  he,  therefore,  can  only  recover  dam- 
ages for  the  taking  and  detention  up  to  the  time  of  delivery, 
and  not  the  value  of  the  goods,  which  by  legal  intendment  are 
in  his  possession.  When  he  charges  that  the  defendant  de- 
tains^ that  is  iu  the  detinet,  and  he  may  have  the  value  as 
damages.^ 

§  54.  Wrongful  taking.  Proof  of  any  unlawful  taking  or 
control  of  the  goods  of  another  is  sufficient  to  sustain  an  alle- 
gation of  taking,  without  proof  of  an  actual  forcible  dispos- 
session of  the  plaintiff. 3  Wrongful  taking,  as  used  in  this 
connection,  does  not  imply  any  forcible  or  malicious  act;  it 
simply  means  that  the  taking  is  against  right.^  Cases  fre- 
quently arise,  however,  where  the  defendant  has  become  pos- 
sessed of  the  plaintiff's  goods  in  a  lawful  manner,  and  refuses 
to  deliver  them  on  request.  In  such  cases  the  action  is  for 
the  detention,  and  is  called  replevin  in  the  detinet.  With  this 
torm  of  action  trover  is  always  concurrent;  or  the  plaintiff 
may,  at  his  election,  employ  it  where  the  goods  were  taken  by 
force. ^  As  every  unlawful  taking  is  'prhna  facie  an  unlaw- 
ful detention,  proof  of  a  wrongful  taking  is  permitted  so  far 
as  to  excuse  the  plaintiff  from  the  necessity  of  proof  of  a 
demand,  even  where  the  form  of  action  is  for  detaining.  The 
rio-ht  to  prove  a  wrongful  taking  in  cases  where  the  charge  is 
for  detention  only  will  not,  however,  h^  permitted  to  affeot  the 
question  of  damages.'* 

'  Petre  v.  Duke,  Lutw.  360;  Potter  t>.  North,  1  Saund.  347  5,  note  3; 
Truitt  v.  Revill,  4  Harr.  (Del.)  71;  Fox  ®.  Prickett,  5  Vroom,  (N.  J.)  13. 
See  Boswell  v.  Green,  25  N.  J.  L.  3'JO. 

2  Haythorn  v.  Kushforth,  19  N.  J.  L.  160;  Cox  v.  Morrow,  14  Ark.  608; 
Stewart  v.  Wells,  6  Barb.  80;  Neff  v.  Thompson,  8  Barb.  215;  Wheeler  «. 
McFarland,  10  Wend.  332;  Barrett  ».  Warren,  3  Hill  (N.  Y.)  349;  Murphy 
■».  Tyndall,  Ilempst.  C.  C.  10. 

3  Moore  v.  Moore,  4  Mo.  421. 

4  Ronge  v.  Dawson,  9  Wis.  24G;  Curamings  «.  Vorce,  3  Hill,  (N.  Y.)  283. 

»  Eklred  v.  The  Ooonto  Co.,  33  Wis.  133;  Newell  «.  Newell,  34  Miss.  400; 
Smith  in.  McLean,  24  Iowa,  323.  Replevin  in  the  detinet  was  seldom  used 
until  it  was  made  applicable  by  statute  to  a  large  majority  of  cases  —  Yates 
f>.  Fassett,  5  Denio,  26;  Potter  v.  North,  1  Saund.  347  6  —  and  it  is  now  the 
most  common  form  of  the  action.    Daggett  «.  Robins,  2  Blackf.  416. 


BCOPE   OF   THE   INVESTIGATION   IN   THIS   ACTION.  39 

§  55.     The  scope  of  the  investigation  in  this  action.     The 

parties  to  this  action  are  not  confined  to  an  investigation  of 
the  naked  question  of  title  or  right  of  possession,  but  may  go 
into  all  the  incidents  that  go  to  make  up  these,  as  being  neces- 
sary to  arrive  at  a  correct  decision.  Thus,  where  replevin  was 
brought  to  recover  property  seized  under  a  chattel  mortgage, 
the  plaintiff  claimed  that  the  note  described  in  the  mortgage 
under  which  the  seizure  was  made  was  given  for  machinery 
that  was  warranted;  that  there  was  a  breach  of  the  warranty, 
and  consequently  a  failure  of  consideration  to  the  amount  of 
that  note;  and  the  matter  was  held  proper.^  Where  the  action 
was  for  a  distress  for  rent  the  defendant  was  permitted  to  show 
that  he  purchased  the  premises  with  the  consent  of  his  land- 
lord ;2  and  where  the  action  was  for  wheat  stored  with  the 
defendant,  and  he  justified  on  the  ground  that  he  was  a  ware- 
houseman, the  plaintiff  replied  that  some  forty  bushels  were 
lost  or  destroyed,  and  that  this  equaled  in  value  the  storeage.* 

§  56.  The  same.  Where  the  holder  of  a  prior  mortgage 
replevied  from  the  sheriff,  the  latter  was  permitted  to  set  up 
as  a  defense  under  the  statute  that  the  mortgage  was  to  secure 
a  loan  on  usurious  interest.*  In  another  case,  where  the  de- 
fendant claimed  that  the  property  belonged  to  his  minor  son, 
and  that  he,  as  natural  guardian,  was  bound  to  keep  the  cus- 
tody .of  it,  the  plaintiff  offered  proof  that  he  bought  of  the 
defendant  and  his  son;  thereupon  the  defendant  introduced 
evidence  to  show  that  the  sale  was  fraudulent. ^ 

§  57.  The  same.  When  the  action  is  for  the  recovery  of 
goods  wrongfully  attached  by  an  officer  on  process  against 
another,  the  plaintiff  must  recover  on  the  strength  of  his  own 
title,  which  is  subject  to  encounter  whatever  would  tend  to 
show  that  the  property  was  liable  to  the  levy.^ 

>  Hutt  V.  Bruckman,  55  111.  441 ;  Bruce  v.  Westervelt,  2  E.  D.  Smith,  440. 

«  Hill  V.  Miller,  5  S.  &  R.  (Pa.)  355. 

«  Babb  V.  Talcott,  47  Mo.  343;  Gillbam  v.  Keroae,  45  Mo.  490. 

*  Dis  V.  Van  Wyck,  2  Hill,  (N.  Y.)  532. 

*  Bliss  V.  Badger,  36  Vt.  338. 

*  Hotchkiss  V.  Ashley,  44  Vt.  198. 


40 


WHEN   AND  ¥0K   WHAT   IT   LIES. 


CHAPTEE  III. 


WHEN  AND  FOR  WHAT  IT  LIES. 


Section. 

Replevin  lies  only  for  chattels  .    58 

Illustrations  of  the  rule    . 

Chattels  severed  from  realty 

Buildings  prhna  facie  real  es- 
tate   

Chattels  may  become  part  of  the 
realty 

What  is  or  is  not  real  estate 

How  far  the  question  as  to  what 
is  or  is  not  real  estate  may  be 
litigated  in  replevin 

The  same 

The  same 

The  same.    Trade  fixtures 

Buildings,  while  fixed  to  land, 
are  part  of  the  realty 

Articles  severed  from  the  realty 

The  same 

The  same 

The  same 

Severance  from  realty  does  not 
change  title    .... 

Growing  crops   .... 

Actual  severance  not  necessary 
to  give  property  the  character 
of  personalty  .... 


74 


75 


Section. 
.    76 


The  same    .... 
Chattels  fixed  to  the  land  of  an- 
other without  his  consent      .    77 
Same  entry  under  adverse  claim    78 
Title  to  real  estate,  when  evi- 
dence in  replevin    .        .        .79 

Tlie  same 80 

Holder  of  colorable  title  cannot 

recover  chattels  severed  .  81 
Defendant  holding  color  of  title  83 
Action  cannot  be  used  to  litigate 

title  to  land     .        .        .        .83 
Chattels  severed  through  mis- 
take          84 

Chattels  severed  by  a  trespasser    85 

The  same 86 

Tliesame    .....    87 
Severed  by  one  claiming  to  own 

the  land 88 

Summary  of  the  rule         .        .    89 
How  far  a  mortgage  on  real  es- 
tate passes  title  to  chattels  sev- 
ered therefrom        .        .        .90 

The  same 91 

The  same 93 

The  same 93 


§  58.  Replevin  lies  only  for  chattels.  Replevin  lies  only 
for  chattels  personal,  and  not  for  real  estate,  or  anything 
attached  to  or  forming  part  of  the  realty. ^  The  title  to  land 
cannot  be  tried  in  this  action,  though,  as  will  be  shown  here- 


'  Roberts  ■».  The  Dauphin  Bank,  19  Pa.  St.  75;  Ricketts  v  Dorrel,  55  Ind. 
470;  Vausse  v.  Russell,  3  McCord,  (S.  C.)  339;  Eaton -».  Southby,  Willes, 
131 ;  Bower  v.  Tallman,  5  Watts  &  Serg.  556. 


SOME   ILLUSTRATIONS   OF   THE   EULE.  41 

after,  where  the  title  to  chattels  depends  on  the  ownersliip  of 
the  soil  from  which  thev  may  have  been  severed,  the  title  of 
the  land  can  be  investigated,  with  the  view  of  determining  the 
ownership  of  chattels.^  The  term  "  goods"  or  "  chattels,"  as 
used  in  this  connection,  has  the  same  signification,  and  in- 
cludes all  species  of  animate  and  inanimate  movable,  tangible 
property.  2 

§  59.  Some  illustrations  of  the  rule.  The  writ  lies  for  do- 
mestic animals,  but  not  for  wild  animals,  until  after  they  are 
reclaimed ;3  or  for  the  increase  of  domestic  animals,  and  the 
plaintiff  may  have  judgment  in  his  favor  for  the  young  of  such 
animals  born,  or  for  wool  shorn  from  them  after  the  animals 
are  replevied.*  It  lies  for  money  in  a  box  or  bag.  or  so  sepa- 
rated from  other  money  that  it  can  be  distinguished ;»  or,  bonds 
which  can  be  identified  ;8  or,  the  records  of  a  parish  or  church;'' 
or  corporate  company  ;8  or,  for  a  note  or  a  check  by  the  legal 
owner; 9  but  not  by  the  winner  of  a  wager,  against  the  stake- 
holder, for  the  winning.io  It  does  not  lie  after  the  death  or 
destruction  of  the  chattel  sued  for.^^  Neither  can  it  be  em- 
ployed to  quiet  title  to  property  in  the  plaintifi:''s  possession. ^  3 

'  Snyder  v.  Vaux,  2  Rawle,  (Pa.)  427 ;  Nibblet  v.  Smith,  4  Duruf  &  E.  504; 
Gullett  V.  Lamberton,  1  Eng.  (Ark.)  109;  F.  N.  B.  156;  Brown  v.  Wallis, 
115  Mass.  158;  Bacon  v.  Davis,  30  Mich.  157;  Cresson  v.  Stout,  17  Johns. 
121;  Chatterton  v.  Saul,  16  111.  150;  Kaowlton  v.  Culver,  1  Chand.  (Wis.) 
214;  S.  C,  2  Pin.  (Wis.)  86. 

»  Eddy  V.  Davis,  35  Vt.  248 ;  Graff  v.  Shannon,  7  Iowa,  508. 

3  Amory  v.  Flyn,  10  Johns.  103;  Goff  v.  Kilts,  15  Wend.  550;  Busters. 
Newkirk,  20  Johns.  75. 

4  Arundel  v.  Trevil,  1  Sid.  81 ;  Buckley  v.  Buckley,  12  Nev.  423. 

5  Bull,  Nisi  Prius,  32;  Skidraore  v.  Taylor,  29  Cal.  619;  Dows  v.  Blgnall 
Lalor  Supt.  (Hill  &  Denio,)  408;  Core's  Case,  Dyer,  22  i. 

6  Sager  v.  Blain,  44  Hand,  (N.  Y.)  448. 

"<  Baker  v.  Fales,  16  Mass.  147 ;  Sawyer  v.  Baldwin,  11  Pick.  492 ;  Sud. 
bury  V.  Stearns,  21  Pick.  148. 

8  Southern  Plank  Road  Co.  v.  Hixon,  5  Ind.  166. 

»  Clapp  ».  Shepard,  2  Met.  127;  Graff  v.  Shannon,  7  Iowa,  508;  Chicker- 
ing  V.  Raymond,  15  111.  303;  Bissell  v.  Drake,  19  Johns.  66.  But,  see  Bar- 
nett  V.  Selling,  70  N.  Y.  492. 

10  Merchant's  S.  L.  &  T.  Co.  v.  Goodrich,  75  111.  554. 

11  Lindsey  v.  Perry,  1  Ala.  204;  Scott  v.  Elliott,  63  K  C.  215. 

»  Bacon  V.  Davis,  30  Mich.  157 ;  Hickey  v.  Hinsdale,  12  Mich.  100. 


42  WHEN    AND    FOR   WHAT    IT   LIES. 

Kor  will  the  action  lie  to  remove  public  papers  or  documents 
from  a  public  office.  Such  instruments  are  in  the  custody  of 
the  law,  and  the  writ,  if  issued  for  their  seizure,  will  be  quashed, 
and  the  papers  returred.^  Nor  for  an  apprentice,  at  the  suit 
of  his  master,  the  apprentice  being  a  freeman,^  though  it  would 
always  lie  for  a  slave.  ISor  will  it  lie  for  articles  in  actual  use 
at  the  time  of  the  service  of  the  writ.  Beasts  of  the  plow  or 
tools  in  actual  use  could  rot  be  distrained.  Keitiier  will  it  lie 
for  articles  of  clothing  or  f>inament  actually  worn  upon  the 
person,  tliough  it  be  with  the  design  to  prevent  the  service  of 
the  writ. 3  Neither  will  it  lie  by  the  appointee  to  an  office, 
for  his  commission,  after  it  hr.c  been  made  out  and  duly  exe- 
cuted by  the  appointing  power.  The  judgment  is  for  the  thing 
or  its  value,  and  the  value  of  a  public  office  cannot  be  ascer- 
tained or  awarded  as  damages.  Replevin,  in  such  cases,  is  like 
replevying  an  office,  Avhicii  the  law  does  not  permit.*  And 
without  attempting  to  enter  into  specific  details,  the  writ  may 
be  said  to  lie  for  all  chattels  personal  which  are  in  esse,  and 
subject  to  manual  delivery,  not  actually  in  use  or  exempted  by 
law.  5 

§  GO.  Chattels  severed  from  realty.  Chattels  personal, 
however  ponderous  or  bulky  they  may  be,  and  notwithstand- 
ing the  fact  that  they  may  have  previously  been  part  of  the 
real  estate,  may  be  recovered  in  this  action.^  In  Arkansas,  the 
statute  which  made  slaves  real  estate  was  designed  only  to 
change  the  mode  of  descent  and  conveyance,  and  not  to  deprive 
the  owner  of  a  right  to  replevin  them  in  case  they  were  wron^j. 
fully  taken  or  detained.' 

'  Brent  v.  Hagner,  5  Cranch  C.  C.  71 ;  Marbury  v.  Madison,  1  Cranch, 
U.  S.  49. 

«  Morris  v.  Cannon,  1  Harr.  (Del.)  230. 

3  Maxliam  v.  Day,  16  Gray,  (Mass.)  213. 

*  Marbury  v.  Madison,  1  Cranch,  U.  S.  50. 

»  Brown  v.  Caldwell,  10  S.  &  R.  (Pa.)  118.  The  old  rule  was  that  it  would 
lie  for  anything  that  could  be  distrained.    Bacon  Abr.,  title  lieplevin. 

«Gear  v.  Bulleodick,  34  111,  74;  Foy  z?.  Reddick,  31  Ind.  414;  Reese  o. 
Jared,  15  Ind.  142;  Ombony  v.  Jones,  21  Barb.  520;  Dubois  v.  Kelley,  10 
Barb.  496;  Mills  v.  Redick,  1  Neb.  437;  Pennybecker  u.  McDougal,  48 
Cal.  162;  Huebschman  v.  McHenry,  29  Wis.  659. 

'  Gullett  V.  Lamberton,  1  Eng.  (Ark.)  118. 


"WHAT   IS   OR   IS    NOT    KEAL    ESTATE.  43 

§  61.  Buildings  are  prima  facie  real  estate.  Buildings,  such 
as  dwelling  houses  and  similar  structures,  are  'prima  facie 
real  estate. ^  They  are  not  fixtures  in  the  common  intend- 
ment of  the  law,  but  part  of  the  land. 2  So,  also,  the  engine 
and  other  machinery  of  a  mill  or  factory  which  is  attached  to 
or  forms  part  of  the  permanent  structure,  is  presumptively 
part  of  the  real  estate,  ^  and  as  such,  not  subject  to  be 
delivered  on  this  writ;  but  a  building  may  become  personal 
property  with  the  consent  of  the  owner,  or  by  circumstances 
which  clearly  indicate  the  intention  of  the  owner  so  to  regard 
it,  and  it  will  then  be  properly  the  subject  of  delivery  upon 
the  writ  of  replevin.^ 

§  62.  Chattels  may  be  attached  to,  and  become  part  of 
the  realty.  Articles  of  personal  property  may  be  permanently 
attached  to,  or  become  part  of  a  building,  and  when  so  attached 
they  are  considered  part  of  the  real  estate,  as  boards  may  be 
wrongfully  taken  and  built  into  a  house  or  other  permanent 
structure,  or  machinery  may  be  permanently  built  into  a  mill. 
In  snch  case  the  owner  cannot  sustain  replevin,  but  is  driven 
to  his  action  for  the  value.  ^ 

§  63.  What  is  or  is  not  real  estate.  A  discussion  of  what 
is  or  what  is  not  real  estate,  would  more  properly  belong  to 
a  treatise  on  some  other  subject  than  replevin,  but  as  it 
is  frequently  the  most  important  question  to  be  determined 
before  bringing  this  action,  and  as  articles  which  are  really 
chattels  sometimes  appear  to  be  attached  to  the  realty,  and 
articles  which  are  in  fact  part  of  the  real  estate  sometimes 
appear  to  be  chattels,  a  brief  reference  to  a  few  of  the  author- 

'Chatterton  v.  Saul,  16  111.  151;  Madigan  v.  McCarthy,  108  Mass.  376; 
Smith  v.  Benson,  1  Hill,  (N.  Y.)  176;  Meyers  «.  Schemp,  67  111.  469;  Vausse 
v.  Kussel,  2  McCord,  (S.  C.)  329;  Davis  «.  Taylor,  41  111.  405. 

sGotr  v.  O'Couner,  16  111.  423. 

s  Harlan  «.  Harlan,  15  Pa.  St.  513. 

4  Doty  V.  Gorham,  5  Pick,  487 ;  Ashmua  v.  Williams,  8  Pick.  402;  Wells 
•D.  Banister,  4  Mass.  514;  Kicker  ■«.  Kelly,  1  Gr.  (Me.)  117;  Yale  v.  Seely, 
15  Vermont.  221;  Fahnestock  v.  Gilham,  77  111.  637;  Beers  v.  St.  John,  16 
Conn.  322 ;  Dooley  v.  Crist,  25  111.  551 ;  Nalor  ».  Collinge,  1  Taunt.  19 ;  Mans- 
field  V.  Blackburn,  6  Bing.  426. 

5  Fryatt  0.  The  Sullivan  Co.,  5  Hill,  (N.  Y.)  117;  Ricketts  v.  Dorrel,  55 
Ind.  470. 


44  WHEN   AND    FOR   WHAT   IT   LIES. 

ities  in  wliich  tliis  question  and  its  relation  to  the  action  of 
replevin  are  considered,  may  be  in  place. 

§  64.  How  far  tlie  question  as  to  what  is  or  is  not  real 
estate  may  be  investigated  in  replevin.  The  action  will  lie  for 
trade  fixtures  and  other  property  not  part  of  the  realty,  and 
the  question  as  to  whether  the  property  in  dispute  is  or  is  not 
part  of  the  real  estate  can  generally  be  investigated  and  deter- 
mined in  this  action.  While  authorities  on  this  point  are  not 
as  numerous  as  might  be  wished,  it  is  probable  that  the  action 
would  be  permitted  to  investigate  the  title  to  property  con- 
cerning tlie  nature  of  which  an  honest,  fair  question  might  be 
made;  and  for  this  purpose  the  sheriff  would  be  warranted,  in 
obedience  to  the  mandate  of  the  writ,  in  severing  and  remov- 
ing property  which  miglit  appear  to  be  a  part  of  the  real 
estate;  but  in  so  doing  the  sheriff  should  exercise  a  reasonable 
discretion,  and  if  his  right  to  sever  the  property  be  denied  on 
the  ground  that  it  is  in  fact  real  estate,  he  ought  to  permit  the 
defendant  all  the  opportunity  to  restrain  the  proceeding  which 
he  can  consistently  with  his  duty,  and  ought  not  to  execute 
the  writ  by  making  such  severance  unless  it  appears  the  party 
is  acting  in  good  faith,  on  reasonably  probable  grounds,  and 
not  then  in  an  oppressive  manner,  or  without  ample  security. 

§  65.  The  same.  Hamilton  v.  Stewart,  59  111.  331,  was  an 
injunction  to  restrain  a  party  from  entering  and  removing 
from  a  basement  room,  certain  fixtures  which  had  been  placed 
there  for  tlie  convenience  of  parties  occupying  it  as  a  saloon. 
The  property  consisted  of  a  counter,  ice  box,  shelves  and  gas 
fixtures.  The  court  said  that  the  party  would  have  the 
undoubted  right  to  employ  replevin;  and  on  the  trial  the 
nature  of  the  fixtures  could  be  investigated,  whether  they  were 
permanently  attached  to  the  building  and  formed  part  of  the 
realty,  or  whether  they  were  mere  temporary  articles  placed 
there  for  the  convenience  of  the  trade  carried  on  in  the  build- 
ing, and  which  could  properly  be  removed  by  a  tenant,  or  a 
purchaser  from  him;  thus  recognizing  the  right  of  a  party 
to  have  the  question  as  to  whether  the  articles  were  part  of  the 
real  estate  determined  in  the  replevin  suit. 

§  QQ.     The  same.    When  the  property  was  a  frame  dwell- 


TKADE    FIXTURES.  45 

mg,  it  was  said  tliat  the  action  should  not  be  dismissed  until 
the  court  could  first  determine  from  the  evidence  whether  it 
was  real  or  personal  property.  ^  So  it  was  no  cause  of  demurrer 
to  a  declaration  in  replevin  that  it  was  brought  for  a  barn, 
sliino-le  mill  and  ofiice.  These  thino^s  miirht  be  real  estate; 
vet  they  might  be  personal  property;  and  whether  they  are  or 
not  is  a  matter  of  evidence  upon  which  the  court  must  deter- 
mine as  the  facts  shall  appear  after  a  full  consideration  of  tho 
evidence.  2 

§  67.  The  same.  Trade  fixtures.  Ewell  on  Fixtures  (p. 
91)  states  the  law  to  be  well  settled  "that  mere  utensils  or 
machines,  or  other  articles  of  a  similar  nature,  being  them- 
selves of  a  chattel  nature,  and  capable  of  being  detached 
without  material  injury  to  the  freehold  or  themselves,  and  of 
being  set  up  and  used  elsewhere,  are  removable  by  the  tenant 
or  his  vendee  during  his  term."  All  such  articles  would 
therefore  be  the  proper  subjects  of  a  suit  in  replevin,  and 
the  officer  having  such  a  writ,  properly  describing  them, 
would  without  question  be  authorized  to  sever  and  remove 
them.  "  On  the  other  hand,"  continues  the  same  authority 
(p.  93),  "there  may  be  annexations  made  by  a  tenant  occupy- 
ing premises  for  trade  purposes  of  so  intimate  and  permanent 
a  character  as  to  furnish  satisfactory  evidence  that  the 
annexations  were  intended  to  be  permanent  accessions  to  the 
realty."  In  such  cases  the  action  of  replevin  would  of  course 
fail;  but  this  statement  of  the  general  rule  leaves  a  wide  field 
open  to  dispute  as  to  whether,  in  any  particular  case,  the  prop- 
erty in  question  should  be  placed  with  the  former  or  the  latter 
class.  Upon  this  question  it  can  only  be  said  that  each  case 
must  necessarily  present  a  mixed  question,  consisting  mostly  of 
fact,  to  which  the  general  rules  of  the  law  must  be  applied.' 

1  Elliott  V.  Black,  45  Mo.  373. 

«  Biearly  v.  Cox,  4  Zab.  (24  N.  J.)  287.  Consult,  also,  Guthrie  v.  Jones, 
108  Mass.  193;  Hanrahan  v.  O'lieilly,  102  Mass.  201 ;  Fahnestock  v.  Gilham, 
77  111.  637;  Goodrich  v.  Jones,  2  Hill,  142;  Reynolds  v.  Shuler,  5  Cow.  323. 

^  Consult  Brown  v.  Wallis,  115  Mass.  158;  Guthrie  v.  Jones,  108  Mass. 
191 ;  Cresson  v.  Stout,  17  Johns.  116;  Hanrahan  v.  O'Reilly,  102  Mass.  201 ; 
Bliss  V.  Whitney,  9  Allen,  114;  Cong.  Society  of  Dubuque  v.  Fleming,  li 
Iowa,  533. 


46  WHEN    AND   FOR    WHAT    IT   LIES. 

§  68.  Buildings  while  fixed  are  part  of  the  realty ;  while 
being  moved  are  personalty.  In  Illinois  when  a  house  was 
built  on  a  foundation  in  such  a  manner  as  showed  that  it  was 
intended  for  a  permanent  residence,  and  not  for  a  temporary 
purpose,  it  was  held  part  of  the  realty,  and  in  such  case  if  the 
house  had  been  removed  to  another  lot,  and  there  again  fixed 
upon  a  permanent  foundation,  such  as  would  show  it  was 
intended  to  be  permanent,  though  it  might  be  regarded  as 
personal  property  wliile  in  transit,  yet  when  so  fixed  upon  the 
second  lot  it  would  again  become  realty,  and  not  subject  to 
replevin.^ 

§  69.  Fixtures,  or  other  articles  severed  from  the  realty, 
become  personalty.  Fixtures  severed  from  the  realty  become 
personal  property,  and  are  subject  to  recovery  in  this  action 
as  though  never  attached  to  the  soil.^  Thus  it  lies  for 
machinery  of  a  mill  severed  from  the  real  estate,'  or  trees  cut 
down;*  or  property  which  would  otherwise  be  treated  as  real 
estate  may,  by  the  act  of  the  parties,  be  regarded  and  treated 
as  personal,  even  without  actual  severance,  and  so  become  the 
subject  of  recovery  in  this  action. ^  Grass  cut  from  the  free- 
hold is  personal,  and  in  an  action  for  it  the  plaintiff  need  not 
show  title  to  the  land." 

§  70.  The  same.  Where  a  person  purchased  a  mill  at 
sheriff's  sale,  and  the  real  estate  only  was  sold,  another  party 
claimed  the  machinery  and  severed  and  took  it,  with  the 
knowledge  of  the  purchaser  at  the  sheriff's  sale,  who  afterward 
brought  replevin,  claiming  it  as  part  of  the  real  estate.  The 
purchaser  was  permitted  to  show  that  it  was  in  fact  part  of  the 
realty,  and  was  sold  by  the  sheriff  with  the  realty  and  con- 
veyed to  him,  and  upon  making  such  proof  he  could  sustain 

»  Salter  v.  Sample,  71  111.  431. 

"  Brown  v.  Caldwell,  10  S.  &  R.  118;  Heaton  v.  Findlay,  12  Pa.  St.  304; 
Mather  v.  Ministers  of  Trinity  Church,  3  S.  «&  R.  509.  Compare  Voorhis 
V.  Freeman,  2  Watts  &  Serg.  116;  Pyle  v.  Pennock,  lb.  290;  Baker®. 
Howell,  6  S.  &  R.  47fi. 

3  Crcsson  v.  Stout,  17  Johns.  116;  Harlan  v.  Harlan,  15  Pa.  St.  514. 

*  Richardson  v.  York,  2  Shep.  (Me.)  210;  Bower  v.  Higbee,  9  Mo.  2G0. 
«  Shell  v.  Haywood,  16  Pa.  St.  527;  Piper  v.  Martin,  8  Barr.  (Pa.)  211. 

•  Johnson  v.  Barber,  5  Oilman,  (111.)  426. 


SEVERANCE   OF   CHATTELS   DOES    NOT   CHANGE    TITLE.  47 

replevin  against  the  party  who  wrongfully  severed  it.^  When 
one  built  a  mill  on  the  land  of  another,  nnder  an  agreement  that 
it  was  to  be  the  property  of  the  builder  until  a  certain  judg- 
ment should  be  paid,  the  judgment  was  not  paid  but  the  land, 
with  the  mill  standing  thereon,  was  sold  on  execution,  the 
mill  was  held  to  be  the  personal  property  of  the  builder. 2 

§  71.  The  same.  Two  persons  leased  land  for  a  salt  well 
on  shares.  Petroleum  came  up  with  the  salt  water  and  they 
collected  and  sold  it,  and  the  owner  of  the  land  brought  trover. 
The  conrt  held  that  the  salt  only  was  granted,  and  tliat  every- 
thing else  was  reserved,  but  that  as  the  lessees  could  not  run  the 
salt  water  without  the  petroleum,  that  the  severance  of  the  oil 
from  the  real  estate  was  inevitable  and  lawful,  and  that  this 
possession  by  the  defendants  was  lawful;  that  trover  would  not 
lie;  that  the  proper  remedy  was  in  equity.^  This  case  con- 
forms in  principle  so  far  as  the  question  of  severance  is  con- 
cerned, to  the  current  of  authorities,  but  no  good  reason  is  per- 
ceived why,  if  the  owner  of  the  land  was  entitled  to  the  oil, 
he  could  not,  after  demand,  recover  it  in  replevin. 

§  72.  The  same.  A  party  bought  a  lot,  paying  only  a  small 
part  of  the  purchase  money,  and  built  a  house  on  it.  After  a 
number  of  installments  of  the  purchase  money  were  due  and 
nnpaid,  he  moved  the  house  off.  Thereupon  the  owner  of  the 
ground  demanded  it  as  personal  property,  and  replevied  it.  It 
was  held  that  the  action  was  proper  and  could  be  sustained,  so 
long  as  the  house  was  not  permanently  attached  to  other 
realty.* 

§  73.  The  severance  of  chattels  does  not  change  the  title. 
It  is  an  unquestioned  rule  of  the  common  law  that  standing 
trees  belong  to  the  realty,  and  as  such  they  are  not  subject  to 
replevin;  but  trees  cut  down  by  a  tenant  become  personal 
property,  and  if  the  tenant  had  no  right  to  cut  them  they 
belong  to  the  owner  of  the  land,  and  he  can  sustain  replevin 

'  Harlan  v.  Harlan,  15  Pa.  St.  513.    See,  also,  Heaton  v.  Findlay,  12  Pa. 
St.  304. 
2  Yater  v.  Mullen,  24  Ind.  277. 
»  Kier  v.  Peterson,  41  Pa.  St.  358. 
*  Ogden  V.  Stock,  34  111.  523.    See,  also,  Salter  v.  Sample,  71  111.  433. 


48  WHEN    AND    FOR    WHAT    IT   LIES. 

for  them  J  Timber  cut  on  State  lands  belongs  to  the  State, 
and  may  be  followed  as  long  as  it  can  be  identilied.3  When 
plaintiff  bought  land  at  sheriff's  sale,  and  took  deeds,  and  also 
took  possession,  with  permission  to  defendants  to  remain  in 
two  houses  on  the  land  as  tenants  at  sufferance,  and  while  there 
they  cut  hay  on  the  land,  the  purchaser  was  allowed  to  recover 
in  replevin. 3  The  reason  for  this  rule  is,  that  a  severance  of 
property  from  the  I'ealty  does  not  cliange  the  ownership.  It 
belongs  to  the  owner  of  the  land  as  much  after  the  severance 
as  before,  and  he  is  entitled  to  all  the  remedies  for  its  recovery 
which  the  law  allows  for  any  personal  property  wrongfully 
taken  or  detained  from  its  owner. ^ 

§  74.  The  same.  Growing  crops.  Crops  growing  on  land 
pass  with  the  title  to  the  realty.  So,  when  a  tenant  rents  land 
from  one  against  whom  suit  in  ejectment  is  pending,  of  which 
the  tenant  has  notice,  and  the  suit  is  determined  against  his 
landlord,  the  growing  crops  pass  with  the  soil,  and  the  party 
recovering  in  ejectment  may  recover  them  in  replevin,  if  the 
tenant  harvests  them  and  refuses  to  deliver. ^  Upon  a  sale  of 
the  land,  and  reservation  in  the  deed  of  plants  or  crops  grow- 
ing thereon,  they  become  personal  property,  and  replevin  will 
lie  for  their  recovery.^  So  where  crops  of  wheat  or  corn  are 
wrongfully  severed  by  a  trespasser,  the  owner  is  not  thereby 
divested  of  his  property,  but  may  sustain  replevin.' 

§  75.  Actual  severance  not  necessary  to  give  property  the 
character  of  personalty.  An  actual  severance  or  disconnec- 
tion of  property  from  the  real  estate  is  not  essential  to  give  it 

'  Paget's  Case,  5  Co.  Rep.  76  h;  Richardson  v.  York,  3  Shep.  (14  Me.)  216; 
Bower  v.  Higbec,  9  Mo.  200;  Gillerson  tj.  Mansur,  45  Me.  26;  Snyder  v. 
Vaux,  2  Rawle,  (Pa.)  427. 

"  Scliulenberg  v.  Ilarriman,  21  Wall.  44. 

8  Nichols  V.  Dewey,  4  Allen,  (Mass.)  386. 

*  Halleck  v.  Mixer,  16  Cal.  578. 

*  Rowell  V.  Klein,  44  Ind.  290,  citing  many  cases.  Manure  made  on  the 
farm  is  part  of  the  realtj^,  but  not  manure  made  at  a  livery  stable.  Daniels 
V.  Pond,  21  Pick.  370;  Middlebrook  «.  Corwin,  15  Wend.  169. 

8  Ring  xi.  Billings,  51  111.  475;  Gibbons  v.  Dillingham,  5  Eug.  (Ark.)  9. 

■>  Bull  V.  Griswold,  19  111.  632;  Anderson  v.  Hapler,  34  111.  439;  Langdon 
v.  Paul,  22  Vt.  205;  Sands  v.  Pfeiffer,  10  Cal.  258;  Sanders  v.  Reed,  12  N. 
H.  558. 


CHATTELS    FIXED    TO    LAND    WITHOUT    CONSENT.  49 

the  character  of  personal  property.  Simple  consent  or  agree- 
ment of  the  owner  of  the  real  estate  will  usually  be  sufficient, 
and  such  consent  may  be  inferred  from  his  acts  or  from  his 
dealings,  when  they  clearly  indicate  such  intentions.  Thus, 
the  sale  of  an  engine  and  boiler  separate  from  the  land,  accom- 
panied by  possession  and  acts  of  ownership  by  the  vendee, 
amounts  to  a  severance  of  the  property  from  the  real  estate,  i 

§  76.  The  same.  A  building  or  other  fixture,  which  is  or- 
dinarily a  part  of  tlie  real  estate,  when  placed  on  the  land  of 
another,  witli  his  consent,  with  the  intention  of  removal,  is 
regarded  as  personal  property,  and  may  be  the  subject  of  re- 
plevin,3  In  California,  a  building  which  was  placed  on  blocks 
not  in  any  way  attached  to  the  soil,  was  regarded  as  personal 
property. 3  A  fence  was  built  on  the  land  of  another  by  mis- 
take, and  remained  there  for  fifteen  years  with  the  consent  of 
the  owner  of  the  land;  he  then  requested  the  plaintiff  to 
remove  it,  and  shortly  after  took  it  away  himself.  The  owner 
of  the  fence  brought,  and  was  permitted  to  sustain  replevin.* 

§  77.  Chattels  fixed  to  the  land  of  another  without  his  con- 
sent. AVhere  the  owner  of  chattel  propertj'  fixes  It  to  the  real 
estate  of  another  without  his  consent,  it  becomes  real  estate, 
and  cannot  be  the  subject  of  an  action  of  replevin.  So,  if  one 
acquire  possession  of  his  neighbor's  chattels,  and  fix  them  to 
his  own  land,  so  that  they  form  part  of  the  real  estate,  though 
trespass  or  trover  might  lie,  replevin  would  not  furnish  a 
remedy.5  A  building  placed  on  the  land  of  another  by  mistake, 
without  the  owner's  knowledge  or  consent,  would  be  personal 
property,  and  liable  for  tlie  debts  of  the  builder — the  owner  of 
the  land  not  objecting,^ 

§  T8.     Same.    Entry  under  adverse  claim.     Where  one  en- 

'  Hensley  v.  Brodie,  16  Ark.  511. 

«  Weathersby  v.  Sleeper.  43  Miss.  732;  Hines  v.  Ament,  43  Mo.  300;  Ash- 
mun  V.  Williams,  8  Pick.  402;  Russell  w.  Richards,  10  Me.  429;  Foy  v. 
Reddick,  31  lud.  414. 

*  Pennybecker  v.  McDougal,  48  Cal.  162.  See,  also,  Mills  v.  Redick,  1 
Neb.  437.    But,  see  Huebschman  v.  McHenry,  29  Wis.  658. 

*  Hiues  V.  Ament,  43  Mo.  300. 

8  Fryatt  v.  The  Sullivan  Co,  5  Hill.  (N.  Y.)  117. 

*  Fuller  V.  Tabor,  39  Me.  520. 

4 


50  WHEN    AND   FOK    WHAT   IT   LIES. 

ters  OTi  the  land  of  another  under  an  adverse  claim,  and  erects 
a  house,  and  after  ejectment  removes  the  house,  tlie  owner  of 
the  land  can  recover  it  in  replevin;  and  the  fact  that  it  was  a 
wooden  building,  and  that  the  builder  erected  it  intending  to 
remove  it  at  some  future  day,  will  make  no  difference;^  but  in 
such  case,  if  the  building  had  been  removed  before  the  suit  in 
ejectment  was  determined,  it  might  have  presented  another 
case.  2 

^  79.  The  title  to  real  estate  — when  evidence  in  replevin. 
"While,  as  has  been  shown,  replevin  does  not  lie  for  real 
estate,  and  the  title  thereto  cannot  be  dii-ectly  tried  in  this 
action, 3  yet  this  rule  only  applies  so  far  as  the  suit  is  for  the 
purpose  of  investigating  the  title  to  real  estate.  When  the 
title  only  comes  in  question  as  a  means  of  determining  the 
ownership  .of  chattels,  there  is  no  reason  why  the  courts  hav- 
ing the  proper  jurisdiction  may  not  resort  to  an  inquiry  into 
the  title  of  real  estate,  as  determining  the  ownership  of  chat- 
tels which  have  been  severed  therefrom;  for  in  such  case  it  is 
not  a  trial  of  the  title  to  lands,  but  of  chattels.^ 

§  80.  The  same.  The  current  of  authorities  fully  sustains 
this  doctrine.  The  title  to  land  must  sometimes  be  inquired  into, 
as  the  only  means  of  determining  the  ownership  of  chattels 
which  have  been  severed  therefrom,  and  in  such  case  deeds  and 
title  papers  may  be  read  in  evidence,  in  replevin.  As  a  gen- 
eral rule  governing  such  cases,  it  may  be  stated  that  the  title 
to  real  estate  may  be  incidentally  called  in  question  in  this 
action,  not  for  the  purpose  of  determining  disputed  titles  to 
real  property,  but  to  enable  the  court  to  pronounce  intelligently 
on  the  title  to  chattels,  where  other  evidence  leaves  a  doubt. 

§  81.  Holder  of  colorable  title  cannot  recover  chattels  sev- 
ered. In  a  suit  for  logs  cut  on  land,  the  title  to  which  was 
claimed  by  plaintiff,  and  of  which  the  plaintiff  was  in  actual 
possession,  the  action  might  be  sustained  without  proof  of 
title;  but  in  such  case  the  defendant  could  show  an  adverse  title 

'  Huebschmann  v.  McHenry,  29  Wis.  659. 

*  See  §  85  and  note,  and  §  88  and  note. 
2  See  ante,  §  58. 

*  Clement  v.  Wright,  40  Pa.  St.  251. 


HOLDER    OF    COLORABLE    TITLE.  51 

to  tlie  land  of  a  higher  character  than  the  plaintiff's  and  defeat 
the  action.  The  holder  of  colorable  title,  without  other  right, 
tliongh  in  possession,  cainiot  recover  against  the  real  owner  by 
a  resort  to  replevin,  any  more  than  in  any  other  action -,1  but 
the  holder  of  colorable  title  in  good  faith  would  doubtless  be 
])ermitted  to  defend  in  this  action. 2  Where  the  plaintiff 
cleared  land  and  put  in  wheat,  and  was  in  possession  when  the 
defendant  entered  and  cut  it,  the  defendant  offered  to  prove 
that  the  land  was  his,  and  that  the  plaintiff  was  a  trespisser, 
in  sowing  the  grain,  and  the  court  admitted  the  evidence. ^ 

§  S2.  The  same.  Defendant  holding  under  claim  of  title  in 
good  faith.  But  when  the  defendant  is  in  possession  of  the 
land,  holding  adversely  under  color  of  title  in  good  faith,  the 
plaintiff,  even  though  he  be  the  real  owner  of  the  soil,  cannot 
recover  chattels  severed  therefrom.  Replevin  cannot  be  the 
means  of  litigating  and  determining  the  title  to  real  estate 
between  adverse  claimants.^  The  owner  of  land  may  bring 
replevin  for  chattels  severed  from  the  freehold,  where  there  is  no 
adverse  possession,  or  where  the  adverse  possessor  is  a  tres- 
passer; but  the  law  does  not  permit  adverse  claimants  to 
contest  the  title  to  land  under  pretense  of  a  contest  about 
chattels,  as  this  would  perhaps  sometimes  give  a  decided 
advantage  to  the  plain  tiff;  ^  and  the  general  rule  may  be  stated 
that  neither  replevin  nor  trover  lies  against  a  party  in  the 
actual  possession  of  land  holding  title,  for  timber,  slate,  or 
any  other  thing  severed  therefrom,  even  in  case  the  title  is  in 
dispute,  but  it  does  lie  by  the  owner  in  possession  either  actually 

'  Hungerford  v.  Redford,  29  "Wis.  347.  See,  also,  Schulenberg  v.  Camp- 
bell, 14  Mo.  493;  Harlan  v.  Harlan,  15  Pa.  St.  513;  Hartv.  Yinsant,  6  Heisk. 
(Tenn.)  616. 

^  See  post,  §  82. 

3  Elliott  V.  Powell,  10  Watts,  (Pa.)  454. 

*  Snyder  v.  Vaux.  2  Rawle,  (Pa.)  427;  Halleck  v.  Mixer,  16  Cal.  575;  Har- 
lan V.  Harlan,  15  Pa.  St.  513;  De  Mott  v.  Hagerinan,  8  Cow.  219. 

5  Vausse  v.  Russel,  2  McCord,  329 ;  Mather  v.  Trinity  Church,  3  S.  &  R. 
509;  Baker  v.  Howell,  6  S.  &  R.  476;  Brown  v.  Caldwell,  10  S.  &  R.  114; 
Powell  V.  Smith,  2  Watts,  126;  De  Mott  v.  Plagerman,  8  Cow.  220;  Davis  v. 
Easley,  13  111.  192;  Saunders  v.  Reed,  12  N.  H.  558;  Langdon  v.  Paul,  22 
Vt.  205;  Sands  v.  Pfeiffer,  10  Cal.  258;  Anderson  v.  Hapler,  34  111  430; 
Cresson  v.  Stout,  17  John.  116. 


52  WHEN   AND   FOR    WHAT   IT   LIES. 

or  constrnetively,  as  against  one  who  wrongfully  severs  and 
removes  any  j^art  of  the  realty  without  color  of  right. ^ 

§  83.  The  same.  The  action  cannot  be  used  to  litigate 
title  to  land.  This  rule,  though  clearly  defined  and  well  estab- 
lished, requires  some  care  in  its  application.  "When  the 
plaintiff  bases  his  right  to  recover  a  chattel  which  has  been 
severed  from  realty,  on  the  fact  that  he  owns  and  is  entitled 
to  immediate  possession  of  the  land  from  which  the  chattel 
was  severed,  he  may  give  evidence  of  his  title  to  the  land,  and 
that  will  establish  his  title  to  the  chattel,  and  a  mere  intruder 
or  trespasser  on  the  land  cannot  object  so  as  to  defeat  the 
action;  but  when  the  defendant  in  such  cases  is  in  possession, 
and  claims  a  title  adverse  to  the  plaintiff,  and  has  color  of  title 
in  good  faith,  the  plaintiff  cannot  recover  against  him  in 
replevin. 2 

§  84.  The  same.  Chattels  severed  through  mistake  in 
boundaries.  When  O.  built  a  cabin  and  stable,  and  cut  timber 
on  laud,  the  boundaries  of  which  were  not  exactly  known,  and 
some  of  the  timber  cut  was  on  the  land  of  another,  it  was 
held  that  the  possession  of  the  land  where  the  timber  was  cut 
was  not  such  as  could  be  used  as  a  defense  in  a  suit  in  replevin. 
Nothing  short  of  an  actual  adverse  possession,  under  claim  of 
ownership,  will  deprive  the  owner  of  the  right  to  sue  in  this 
action  for  chattels  severed  from  his  land;^  and  the  rule  that  a 
party  in  possession  under  paper  title  is  restricted  in  his  pos- 
session by  the  calls  in  his  deed  (unless  he  has  actual  possession 
of  other  lands),  applies  in  replevin  as  in  other  actions. 

§  85.  The  same.  Chattels  severed  by  a  trespasser.  Plain- 
tiff was  in  possession  of  about  eight  hundred  acres  of  land, 

1  Brewer  v.  Fleming,  51  Pa.  St.  Ill ;  Wright  v.  Guier,  9  Watts,  173;  Elliott 
V.  Powell,  10  Watts,  454;  Harlan  v.  Harlan,  3  Harris,  (15  Pa.  Ht.)  500; 
Brown  v.  Caldwell,  10  S.  &  R.  (Pa.)  114.  Where  a  disseizor  enters  and 
sows  wheat,  and  the  real  owner  afterward  re-enters,  he  shall  have  the  crop 
whether  cut  and  on  the  premises  or  growing,  because  he  takes  his  former 
title,  and  the  crops  belong  to  him,  and  the  disseizor  can  take  nothing. 
Hooser  v.  Hays,  10  B.  Mon.  (Ky.)  72. 

3  Halleck  v.  Mixer,  16  Cal.  570;  Page  v.  Fowler,  28  Cal.  608;  Harlan  v. 
Harlan,  15  Pa.  St.  513;  Anderson  v.  Hapler,  34  111.  439. 

3  Young  V.  Herdic,  55  Pa.  St.  173. 


CHATTELS   SEVERED    BY    A   TRESPASSER.  53 

wliicli  had  been  inclosed  for  several  years,  but  the  fences  had 
fallen  down  in  places.  Defendants  entered  and  claimed  to 
pre-empt,  each  one-quarter  section.  They  built  liouses  and 
lived  on  the  claims.  They  were  not  successful  in  establishing 
their  claim  for  pre-emption,  and  plaintiff  recovered  against 
them  in  ejectment.  While  they  were  in  possession,  they  cut 
hay,  which  the  plaintifl'  replevied.  Held,  that  the  replevin 
suit  could  not  be  sustained;  that  the  owner  of  the  land  was 
out  of  the  possession,  and  defendants  in  possession,  claiming 
to  own  it.  The  owner  of  land,  being  ousted,  may  have  his 
action  for  the  rents  and  profits,  but  not  for  the  crops  grown  on 
the  land  and  harvested  and  removed  by  the  disseizor.  The 
law  in  all  such  cases  gives  the  owner  an  action  for  the  rents 
and  profits,  but  not  the  crops,  or  their  value.  It  would  be 
oppressive  to  require  one,  after  3'ears  of  litigation,  after  finding 
he  had  a  bad  title,  to  pay  the  value  of  the  crops  grown;  and  it 
would  be  an  inconvenience  to  the  public  if  they  were  obliged 
to  look  at  his  title  before  buying  his  crops. i 

§  86.  The  same.  AViien  replevin  was  brought  for  w^ood 
cut  on  plaintiff's  land  by  defendant,  who  was  in  possession 
as  a  trespasser  without  color  of  title,  adverse  possession  of  the 
land,  unless  for  a  period  long  enough  for  the  statute  of  lim- 
itation to  run,  would  not  protect  the  defendant  in  an  action 
for  the  timber  severed  from  the  realty;  the  court  saying  that 
when  the  defendant  is  in  possession  as  a  trespasser,  his  rights 
resting  only  on  a  naked  assertion  of  title  sufficient  to  put  the 
statute  of  limitations  in  operation,  the  question  of  title  can- 
not be  said  to  be  in  issue  until  the  statute  has  actually  run. 2 

§  87.  The  same.  When  a  trespasser  entered  on  land  and 
sowed  grain,  and  the  land  was  afterward  sold  by  the  sheriff 
upon  execution  against  the  owner,  the  purchaser  at  such 
sale  was  entitled  to  the  grain;  and  when  the  purchaser,  by 
mistake,  took  the  trespasser  for  a  tenant  of  the  former  owner, 
and  seized  upon  the  grain  by  distress  for  rent,  and  it  was 
replevied  by  the  trespasser,  who  pleaded  non  tenuit  to  the 
avowry  in  replevin,  the  defendant  in  replevin  (the  purchaser) 

1  Page  V.  Fowler,  39  Cal.  415;  Page  v.  Fowler,  28  Cal.  608 

2  Kimball  v.  Loiimas,  31  Cal.  155. 


54  WirEN    AND    FOE    WHAT    IT   LIES. 

was  entitled  to  take  liim  at  his  word,  and  if  not  a  tenant  he 
was  a  trespasser,  and  the  defendant  in  replevin  was  entitled  to 
recover.  1  The  doctrine  stated  has  been  carried  even  fnrther 
in  California,  where  it  was  said  the  owner  of  the  land  cannot 
sustain  replevin  for  crops  raised  on  the  land  by  one  who  holds 
possession  with  adverse  claim  of  right,  even  thongh  without 
color  of  title.^ 

§  88.  Where  a  party  in  possession  of  lands  claiming  to  own 
them  severs  chattels.  Land  was  in  the  actual  possession  of 
W.,  claiming  the  premises  as  his  own,  and  holding  adversely 
to  plaintiff,  who  had  the  title;  while  so  in  possession  he  cnt  a 
quantity  of  liay  and  sold  it  to  defendant,  and  plaintiff  brouglit 
replevin.  Held,  it  could  not  be  sustained,  "VV.  being  in  posses- 
sion and  claiming  title  must  be  regarded  as  the  owner  until 
after  judicial  decree.^ 

§  89,  Summary.  From  these  cases  it  would  seem,  then, 
that  the  mere  assertion  of  title  by  one  in  possession  will  not 
defeat  the  riglits  of  the  real  owner  of  the  fee.  The  law  will 
not  permit  a  mere  trespasser  to  set  up  a  claim  of  title  and 
thus  acquire  riglits,  or  protect  himself  in  his  wrong-doing. 
The  title  which  will  protect  one  in  possession  must  be  a  color- 
able title,  made  in  good  faith.  It  is  not  adverse  2X)Ssession 
alone,  nor  adverse  possession  claiming  title,  unless  for  a  suffi- 
cient lenirth  of  time  for  the  statute  of  limitations  to  run  that 
constitutes  the  grounds  of  defense,  but  a  colorable  title  made 
in  good  faith.  The  assertion  of  title  by  a  trespasser  confers 
no  title.4 

>  Hellings  v.  Wright,  14  Pa.  St.  375. 

2  Pennybecker  v.  McDnugal.  4G  Cal.  663. 

2  Stockwell  V.  Phelps,  34  N.  Y.  363.  See  Mather  v.  Ministers,  etc.,  Trinity 
Chiircli,  3  S.  &  R  509;  Lehman  v.  Kellerman,  65  Pa.  St.  489;  Ralston  «. 
Hughes,  13  111.  469. 

4  Halleck  v.  Mixer,  16  Cal.  574;  Page^.  Fowler,  39  Cal.  413;  Kimball  v. 
Lohmas,  31  Cal.  158 ;  Stockwell  «.  Phelps,  34  N.  Y.  363 ;  Brown  v.  Caldwell, 
10  S.  &  R.  118.  An  execution  debtor  has  no  right  to  keep  purchaser  at 
slicritr's  sale  out  of  possession  by  sowing  crops  (wheat)  which  may  not 
mature  until  after  the  purchaser  is  entitled  to  his  deed.  The  debtor,  after 
such  sale,  cannot  maintain  replevin  for  such  crops  as  sown  by  himself. 
Parker  -«.  Storts,  15  O.  St.  353.    It  was  said  if  the  owner  of  a  mill  take  out 


MORTGAGE   ON   KEAL   ESTATE.  55 

§  90.  How  far  a  mortgage  on  real  estate  passes  title  to 
chattels  severed  therefrom.  The  question  as  to  how  lar  a 
mortgage  passes  the  title  to  land  so  as  to  convey  chattels  severed 
from  the  realty  to  the  mortgagee  is  often  of  the  greatest  im- 
portance, and  sometimes  attended  with  considerable  difficulty. 
Upon  this  question  authorities  are  not  uniform.  The  general 
rule  may  be  stated,  that  in  States  where  the  mortgage  is  by 
law  regarded  as  an  absolute  conveyance  of  the  land  with  a  con- 
dition of  defeasance  on  payment  of  the  mortgage  debt,  that 
chattels  severed  from  the  realty  during  the  existence  of  the 
mortgage  may  be  said  to  belong  to  the  mortgagee,  and  he  may 
recover  them  in  an  action  of  replevin.  But  when  the  mort- 
gage is  only  regarded  as  a  security  for  debt,  and  not  a  convey- 
ance of  the  title  to  the  land  chattels  severed  from  the  land,  do 
not  necessarily  belong  to  the  mortgagee,  at  least  not  until  after 
default  and  foreclosure.  In  many  of  the  States  a  mortgage  is 
considered  a  conveyance  of  the  fee,  and  in  such  case  a  iixture 
severed  without  the  consent  of  the  holder  of  the  mortsaofe  so 
as  to  endanger  the  security  may  be  recovered  in  replevin,  as 
he  is  looked  upon  as  the  owner  of  the  fee.^ 

§  91.  The  same.  In  Minnesota  it  was  held  that  the  holder 
of  a  mortgage  on  real  estate  is  not  entitled  to  the  timber  cut 
from  the  mortgaged  property,  even  after  default,  until  he  shall 
have  foreclosed  his  mortgage.  The  reason  for  this  decision 
seems  to  be  based  on  the  statute  which  substantially  declares 
that  a  mortgage  shall  not  be  held  a  conveyance  so  as  to  entitle 
the  holder  to  recover  possession  without  foreclosure. ^  But 
in  Rhode  Island  it  was  held  that  the  mortgagee  could  sustain 

a  mill  stone  to  pick  it,  and  devise  the  mill  while  it  is  out,  the  mill  stone 
shall  pass  by  the  devise.    Bull,  N.  P.  34. 

'  Smith  V.  Goodwin,  2  Me.  173;  Hemenway  tj.  Bassett,  13  Grey,  378;  Gore 
V.  Jenness,  19  Me.  53;  Roberts  v.  Dauphin  Bank,  19  Pa.  St.  75;  Cope  v.  Ro- 
meyne,  4  McLean,  384;  Latham  v.  Blakely,  70  N.  C.  3G8;  Gray  v.  Holdship, 
17  S.  &  R.  413;  Goff  v.  O'Couner,  16  111.  431;  Sanders  v.  Reed,  13  N.  H. 
561;  Frothingham,  v.  IVlcIvusick,  24  Me.  405;  Bussey  v.  Page,  14  Me.  133; 
Smith  V.  Moore,  11  N.  H.  55;  Thomas  v.  Crofut,  14  N.  Y.  474;  Van  Pelt  v. 
McGraw,  4  N.  Y.  Ill;  Fernald  v.  Linscott,  6  Me.  234;  Brattou  v.  Clawson, 
2  Strobh.  (S.  C.)  478. 

^  Adams  v.  Corriston,  7  Minn.  456. 


56  "WHEN   AND   FOB   AVHAT   IT   LIES. 

replevin  against  the  raortgageor^  in  possession  for  timber  cut 
on  the  mortgaged  premises  in  substantial  dimunition  of  the 
security  of  the  mortgage. ^  Substantially  the  same  rule  was 
declared  to  be  the  law  in  Maine  and  New  York,  where  the  court 
permitted  the  mortgagee  before  entry  to  recover  in  trespass 
for  cutting  timber  in  the  mortgaged  premises;  tlie  reason 
being  that  it  might  diminish  the  security. ^ 

§  92.  The  same.  In  Yermont  the  mortgagee,  after  condi- 
tion broken  and  before  foreclosure,  was  allowed  to  sustain 
trover  against  the  mortgageor  for  the  value  of  timber  cut,  and 
replevin  would  of  course  have  been  permitted  had  that  been 
the  form  of  the  action.^  But  in  Kansas  the  mortgageor  re- 
moved a  house  from  the  mortgaged  premises  and  the  remedy 
was  denied.  5 

§  93.  The  same.  "The  question,"  said  Redfield,  J.,  "in 
Langdon  v,  Paul^  22  Yt.  210,  is  whether  the  mortgagee,  after 
condition  broken,  can  maintain  an  action  in  the  nature  of 
waste  agai)ist  the  mortgageor  in  possession  for  cutting  timber 
and  selling  it,  or  trover  for  the  timber."  There  is  no  English 
case  against  the  action.  In  the  case  of  Hitchman  v.  Walton^  4 
Mees.  &  W.,  409,  the  court  of  exchequer  upon  a  full  argument 
decided  the  action  maintainable  on  either  count.  The  mort- 
gageor, said  the  court,  has  no  just  grounds  of  complaint.  He 
may  at  any  time  defeat  the  plaintiff's  action  by  paying  the 
mortsaire  debt  and  tendino;  the  costs.     If  he  will  not  do  that, 

'  It  is  with  feelings  of  extreme  diflficlence  that  the  author  has  ventured 
to  depart  from  the  examples  of  many  eminent  law  writers  in  tlie  ortliography 
of  this  word.  He  has,  however,  followed  the  legal  pronunciation  and  the 
spelling  of  the  dictionaries,  all  of  which  it  is  believed  will  be  found  to 
agree  therewith. 

*  Waterman  and  Wf  «.  Matteson,  1  Ames,  (4  R.  I.)  540. 

2  Stowell  V.  Pike,  2  Greenleaf,  (Me.)  387;  Fernald  v.  Linscott,  6  Greenleaf, 
(Me.)  238;  Gore  v.  Jenness,  19  Me.  (1  App.)  54;  Smith  'o.  Goodwin,  2  Me. 
173.  See,  also,  Northampton  Paper  JMill  v.  Ames,  8  Met.  1 ;  Yates  «.  Joyce, 
11  Johns.  136;  Jackson  v.  Bronson,  19  Johns.  326;  Hatch  v.  Dvvight,  17 
Mass.  299;  Van  Pelt  v.  McGraw,  4  Comst.  (N.  Y.)  110;  Gardner  «.  Heartt,  3 
Denio,  233. 

4  Langdon  t.  Paul,  22  Vt.  210.  See,  also,  Lull  «.  Matthews,  19  Vt.  322; 
Morey  v.  McGuire,  4  Vt.  327. 

6  Clark  V.  Reyburn,  1  Kan.  281. 


MOETGAGE    ON    KEAL    ESTATE.  57 

but  suffer  tlie  estate  to  go  upon  the  mortgage,  tlie  mortgagee 
is  entitled  to  his  judgment, ^ 

'  Morey  v.  McGuire,  4  Vt.  327;  Lull  v.  MaUhews,  19  Vt.  322.  See,  also, 
Blaney  v.  Bearce,  2  Me.  182;  Froth ingham  v.  McKusick,  11  Shep.  (24  Me.) 
403 ;  Gore  v.  Jenness,  19  Me.  53. 


58 


PLAINTIFF    MUST   HAVE    RIUHT   TO    POSSESSION. 


CHAPTEE  lY. 

PLAINTIFF  MUST   HA.VE   THE   RIGHT   TO    IMMEDIATE  AND 
EXCLUSIVE  POSSESSION. 


Section. 
Plaintiff  must  have  a  right  to 
immediate  aud  exclusive  pos- 
session      94 

Proof  of  wrongful  taking  not 

necessary         .        .        .        .95 
The  term  "  property  "  or  "  prop- 
erty in  the  plaintiff,"  doe?  not 
mean  absolute  ownership       .    96 
Right  of  possession  aud  owner- 
ship maybe  in  different  persons    97 
Property  of  bailee      .        .        .98 
One  entitled  to  possession  for  a 

special  purpose       .        .        .99 
Illustrations  of  the  rule     .        .  100 

The  same 101 

Ownership  not  necessarily  de- 
termined in  the  action  .  .  103 
Borrower  cannot  set  up  a  title  .  103 
Carrier  cannot  show  title  in  a 
third  party  as  a  defense  to  an 
action  by  the  shipper  or  con- 
signee       104 

Legal  title  will  prevail  over  the 

equitable          ....  105 
Assignee  in  bankruptcy    .        .  106 
Right  to  present  possession  does 
not  depend  on  former  posses- 
sion   107 

Rule  similar  to  that  in  trespass  108 
Prior  rightful  possession,  when 

sufficient 109 

Tiie  same 110 

Application  of  the  rule    .        .111 

The  same 113 

Rightful  possession  evidence  of 

title 113 

Coutlicting  claims  to  possses- 
siun 114 


Section. 

Possession  must  be  under  a 
claim  of  right         .        .        .115 

But  need  not  be  under  a  claim 
of  title.    Finder  of  property  116 

The  same 117 

Lieu  of  a  finder  for  reward  of- 
fered         118 

Finder  of  a  note  has  no  right 
to  collect  it      ...        .  119 

Where  title  is  the  issue,  good 
title  must  be  shown        .        .  120 

Nature  of  the  special  property 
necessary  to  support  replevin  131 

Owner  usually  entitled  to  pos- 
session.   Exceptions      .        .  133 

Liens 133 

The  same 124 

The  same    .....  125 

The  same.  Taking  up  of  an 
estray 136 

Goods  lost  at  sea        .        .        .  137 

Goods  in  possession  of  one's 
servant 138 

Contract  for  purchase  of  prop- 
erty does  not  necessarily  con- 
fer right  of  possession    .        .  139 

An  officer  levying  process  has 
special  property  and  right  to 
possession        ....  130 

Possession  of  a  receiptor  to  an 
officer 131 

An  agent  who  is  responsible  to 
the  owner  has  sufficient  pos- 
session to  support  replevin     .  133 

Wrongful  seizure  or  sale  by  an 
officer  does  not  affect  owner's 
right 133 


IMMEDIATE    AND    EXCLUSIVE    POSSESSION.  59 

§  94.  Plaintiff  must  have  a  right  to  immediate  and  exclu- 
sive possesion.  One  of  the  cardinal  rules  in  this  action  is, 
that  the  plaintiff  must  in  all  cases  have  a  general  or  special 
property  in  the  goods  which  he  seeks  to  recover,  with  the  right 
to  tlieir  immediate  atid  exclusive  possession  at  the  time  of  the 
commencement  of  his  suit.  This  has  been  the  rule  from  the 
earliest  times,  and  is  sustained  hj  an  unbroken  current  of 
authorities  to  the  present  daj.^  It  is  also  an  established  rule 
that  the  plaintiff,  having  such  property  and  right  of  possession, 
may  sustain  the  action  without  other  title,  even  against  the 
general  owner. 2  In  Iowa  it  is  said  the  simple  question  to  be 
determined  is,  "in  whom  was  the  right  of  possession  at  the 
time  of  the  institution  of  the  suit."  And  in  this  view  it  is 
sufficient  for  the  plaintiff  to  alleo-e  his  right  of  possession 
when  his  suit  was  begun. ^     So,  where  the  action  was  for  the 

'  Britton,  Nichol's  Trans.,  Vol.  1,  p.  139;  Gordon  v.  Ilnrper,  7  Durnf  & 
East.  9  and  6 ;  Smith  v.  Plomer,  15  East,  607;  Jimmerson  v.  Green,  7  Nebraska, 
26;  Meredith  v.  Knott,  34  Geo.  222;  Crockery.  Mann,  3  Mo.  473;  Russell 
V.  Minor,  22  Wend.  659;  Mclsaacs  v.  Hobbs,  8  Dana,  (K}-'.)  268;  Hubloun's 
Case,  Skinner,  65;  Reese  v.  Harris,  27  Ala.  306;  Loveday  v.  Mitchell,  Co- 
niyns,  247;  Hilgeru.  Edwards,  5  Nev.  84;  ]\Iu2:g:ridge  «.  Eveleth,  9  Met.  235; 
Kirby  v.  Miller,  4  Cold.  (Tenn.)3;  Sager  v.  Blain,  5  Hand.  (N.  Y.)  449;  Bas- 
sett  y.  Armstrong,  6  jNIich.  397;  Barrett  v.  Scrimshaw,  Combe,  477;  Llo3'd 
V.  Goodwin,  12  S.  &  M.  (Miss.)  223;  Packard  y.  Getman,  4  Wend.  613;  Wa- 
terman V.  Robinson,  5  Mass,  304;  Hallinbake  v.  Fish,  8  Wend.  547;  Fair- 
bnnk  V.  Phelps,  22  Pick.  538;  Forth  v.  Parsley,  82  111.  152;  Ingersoll  v.  Em- 
merson,  1  Carter,  (Ind.)  77;  Bradley  v.  Michael,  1  Carter,  (Ind.)  552;  John- 
son  V.  Neale,  6  Allen,  228;  Barry  v.  O'Brien,  103  Mass.  521 ;  Pattison  v.  Ad- 
ams, 7  Hill.  (K  y.)  126;  Wade  v.  Mason,  12  Gray,  335. 

•■^  Crocker  v.  Mann,  3  Mo.  473;  Prater  v.  Frazier,  6  Eng.  (Ark.)  249. 

3  Cassell  V.  Western  Stage  Co.,  12  Iowa,  48.  But,  see,  and  compare  Pat. 
tison  D.  Adams,  7  Hill,  (N.  Y.)  126.  "The  plaintiti  must  have  a  general 
or  special  propertj-  in  the  goods,  with  the  right  to  immediate  possession." 
Lowry  v.  Hall,  2  W.  &  S.  (Pa.)  133;  Stapleford  v.  White,  1  Houst.  (Del.) 
238;  Lester  v.  McDowell,  18  Pa.  St.  91;  Pierce®.  Stevens,  30  Me.  184;  Hay- 
thorn  V.  Rushforth,4  Har.  (19  N.  J.)  160;  Seibcrt®.  M'Henry,  6  Watts.  (Pa.) 
302.  "  The  action  cannot  be  sustained  by  one  who  has  not  at  the  time  a  gen- 
eral or  special  property  in  the  goods,  with  the  right  to  their  immediate  pos- 
session."  Miller  v.  Adsit,  16  Wend.  335;  Perley  v.  Foster,  9  Mass.  114; 
Thompson©.  Button,  14  Johns.  84;  Dunham  v.  Wyckoff,  3  Wend.  281 ;  Red. 
man  v.  Hendr'CKS,  1  Sandf.  (N.  Y.)  32.  "The  plaintiff  must  have  the  ex- 
elusive  right  to  the  possession  of  the  goods  at  the  time  the  suit  is  begun." 
Hunt  V.  Chambers,  1  Zab.  (21  N.  J.)  623;  Kingsbury  v.  Buchanan,  11  Iowa, 


60  PLAINTIFF    MUSI    HAVE    EIGHT    TO    POSSESSION. 

grain  in  a  warehouse,  the  defendants  were  permitted  to  show 
tliat  there  was  grain  in  the  warehouse  belonging  to  other 
parties,  as  a  defense. i  Therefore,  wlien  tlie  plaintiff's  right 
to  possession  did  not  accrue  until  after  his  suit  was  begun,  he 
had  not  at  that  time  the  right  to  possession,  and  could  not 
sustain  the  action. ^ 

§  95.  Proof  of  wrongful  taking  not  necessary.  An  actual 
wrongful  or  forcible  taking  from  the  plaintiff's  possession  was 
formerly  essential;-''  but  as  the  law  stands  now,  such  proof  is 
not  requisite.* 

§  96.  The  term  "  property,"  or  "  property  in  the  plaintiff," 
does  not  mean  absolute  ownership.  The  term  "  property," 
or  "  property  in  the  plaintiff,"  used  in  this  connection,  and 
generally  in  this  action,  does  not  mean  ownership  hy  absolute 
title,  but  a  right  to  the  possession  or  dominion  over  the  goods, 
which  he  seeks  to  recover,  at  the  time  he  makes  demand  or 
brings  suit.^     So,  in  case  of  the  defendants,  a  plea  of  property 

387;  Noble  «.  Epperly,  6  Port.  (Ind.)  416;  Barrett  v.  Turner,  2  Neb.  174; 
Dickson  v.  Mathers,  Hempst.  U.  S.  C.  C.  65.  Possession  for  the  full  period 
of  the  Statute  of  Limitations  invests  the  party  with  title.  He  may  make 
use  of  it  against  the  former  owner,  if  he  assume  to  retake  the  property. 
Hicks  V.  Fluit,  21  Ark.  463.  "  Persons  having  a  special  property  in  the 
goods,  with  the  right  to  immediate  possession,  may  sustain  the  action." 
Wheeler  v.  ]\IcFarland,  10  Wend.  334;  Branch  v.  Wiseman,  51  Ind.  1 ;  Tut- 
liill  V.  Wheeler,  6  Barb.  362;  Mead  v.  Kilday,  2  Watts.  110;  Hamilton  v. 
Mitchell,  6  Blackf.  131 ;  Burton  v.  Tannehill,  6  Blackf.  470.  The  plaintiff 
must  have  a  right  to  delivery  of  the  goods  at  the  time  the  writ  issues, 
eharp  r.  Whittenhall,  3  Hill,  576;  Amick  v.  Young,  C9  Ills.  542. 

1  Nelson  V.  Mclntyre,  1  Bradwell,  (111.)  603.  See,  also,  Gillett  v.  Tre- 
ganza,  6  Wis.  343.  Consult  Rose  o.  Tolly,  15  Wis.  444;  Walpole  v.  Smith, 
4  Blackf.  306;  Presley  o.  Powers,  82  111.  125;  Chinn  v.  Russell,  2  Blackf. 
174;  Clark  v.  Heck.  17  Ind.  (Harrison,)  281;  Wheeler  v.  Train,  3  Pick.  255; 
Beckwith  v.  Philleo,  15  Wis.  223;  Appletou  v.  Barrett,  22  Wis.  569;  Rogers 
V.  Arnold,  12  Wend.  30. 

2  Campbell  v.  Williams,  39  Iowa.  646. 

3  Ely  V.  Ehle,  3  Comst.  (N.  Y.)  506;  Dame  v.  Dame,  43  N.  H.  37;  Wright 
V.  Armstrong,  Breese,  (111.)  130;  Ilarvvood  v.  Smethurst,  29  N.  J.  L.  195. 

*  Kerley  v.  Hume,  and  Hume  v.  Gillespie,  3  T.  B.  Mou.  (Ky.)  181.  Cora- 
pare  Cobb  v.  Megrath,  36  Geo.  625;  McArthur  v.  Hogan,  Hempst.  286; 
Skinner  v.  Stouse,  4  Mo.  93.     See  cases  cited  in  notes  to  §  94. 

»  Johnson  v.  Carnley,  6  Selden,  (N.  Y.)  570;  Sprague  v.  Clark,  41  Vt.  6. 


PROPERTY    OF   BAILEE.  61 

in  defendant  does  not  mean  absolute  ownersliip,  but  a  right  to 
present  and  exclusive  possession. ^ 

§  97.  Right  of  possession  and  ownership  may  be  in  different 
persons.  The  right  to  the  immediate  possession  may,  some- 
times, be  in  one  person,  while  the  title  maj  be  in  anuther,^ 
as  frequently  arises  in  eases  of  bailment  for  a  special  purpose. 
The  bailee  may  have  the  right  to  the  immediate  possession  by 
virtue  of  a  lien  for  services  bestowed,  or  a  lease  for  an  unex- 
pired time,  and  in  such  case  the  action  can  be  sustained  by  the 
owner  of  the  special  property  even  against  the  owner  of  the 
title,  upon  showing  right  to  possession  as  against  him  at  the 
time  the  suit  was  begun ;3  and  the  plaintiff's  claim  is  sutil- 
ciently  maintained  if  he  shows  himself  entitled  to  possession 
as  against  the  defendant  at  the  tin:ie  the  suit  was  begun.  He 
is  not  obliged  to  show  title  against  the  world. ^  The  statutes 
giving  the  right  to  maintain  replevin,  which  are  substantially 
the  same  in  all  the  States,  do  not  limit  the  action  to  the  owner 
of  absolute  title,  but  any  owner  of  special  property  with  the 
right  to  possession  is  entitled  to  sustain  the  action  the  same  as 
though  he  held  absolute  title.  ^ 

§  98.  Property  of  bailee.  As  a  general  rule,  property  in 
the  hands  of  a  borrower,  trustee  or  bailee,  for  a  limited  time 
or  purpose,  without  fraud  or  wrongful  intent,  is  not  liable  to 
be  taken  upon  process  for  the  collection  of  his  debts,  and  if  so 
taken,  the  real  owner,  entitled  to  immediate  possession,  may 
sustain  replevin;^  but  cases  often  arise  where  a  bailee  has  an 
interest  in  the  property  bailed,  which  may  be  seized  and  sold 
on  process  against  him.  For  example,  if  one  hire  a  horse  for 
a  year,  and  acquire  the  right  to  exclusive  possession  for  that 
time,  his  interest  may  be  taken  and  sold  on  execution.  In  this 
case,  only  the  interest  of  the  bailee,  not  the  general  property, 

»  Huntc.  Chambers,  1  Zab.  (21  K  J.)  620;  Cleaves  v.  Herbert,  61  111.  127. 
»  Childs  V.  Childs,  13  Wis.  20;  McLaugliliar.  Piatti,  27  Cal.  453. 
«Bowea  v.  Fenner,  40  Barb.  385;  Roberts  v.  "Wyatt,  2  Tauat.  208;  Burton 
■D.  Hough.  6  Mod.  334;  Pain  v.  Whittaker,  Ry.  &  Moody.  99. 

*  Summons  v.  Austin,  36  Mo.  308;  IngersoU  v.  Emmerson,  1  Carter, 
(Ind.)  78;  Dunning  v.  South,  62  Ills.  176. 

»  Williams  v.  West,  2  Ohio  St.  83. 

•  Robinson  v.  Champlin,  9  Iowa,  91. 


62  PLAINTIFF   MUST    HAVE    EIGUT   TO    POSSESSION. 

would  pass  by  such  a  sale.^  "Where  phiintiff  leased  oxen  to 
A.  for  three  months,  and  they  were  levied  upon  by  an  attach- 
ment against  A.  before  the  three  months  had  expired,  the 
court  was  unanimous  that,  inasmuch  as  the  plaintiff  had  no 
right  to  the  immediate  possession  when  the  suit  was  begun, 
he  could  not  recover  in  replevin,  even  tliough  he  was  the 
general  owner.  2 

§  99.  Replevin  lies  at  the  suit  of  one  entitled  to  the  prop- 
erty for  a  special  purpose.  Where  a  party  bought  five  hundred 
head  of  cattle,  and  paid  the  full  purchase  price,  the  vendors 
agreeing  that  the  purchaser  might  select  that  number  from 
their  herd  and  take  immediate  possession,  the  court  intimated 
in  argument,  that  he  might,  upon  refusal  of  the  vendors  to 
permit  him  to  make  the  selection,  have  replevied  the  whole 
lierd,  and  selected  his  five  hundred  therefrom,  and  returned 
the  remainder.3  No  matter  what  the  plaintiff's  title  may  be, 
he  cannot  sustain  the  action  against  a  defendant  who  had  the 
right  of  possession  at  tlie  time  tiie  suit  was  begun. * 

§  100.  Illustrations  of  the  rule.  A  multitude  of  cases  will 
doubtless  suggest  themselves  to  the  reader,  where  the  neces- 
sities of  commerce  and  business  require  that  a  party  entitled 
to  present  possession  of  a  chattel  should  find  a  ready  and 
effective  remedy  to  enforce  his  rights  to  it,  against  all  persons, 
even  the  general  owner,  who  acts  in  disregard  of  them.  The 
bailee  of  a  horse  or  ship  for  a  special  purpose,  or  for  a  stated 
time,  the  carrier  who  transports  goods  for  hire,  the  commission 
man  who  advances  money  upon  goods  consigned  to  him,  or 
the  warehouse  man  who  stores  them  at  the  owner's  request,  or 
the  mechanic  who  repairs  a  watch  or  carriage,  each  has  a 

J  Cal dwell  v.  Cowan,  9  Yerg.  (Tenn.)  262. 

2  Collins  V.  Evans,  15  Pick.  63.  See,  also,  Wheeler  v.  Train,  3  Pick.  255; 
Gordon  v.  Harper,  7  Diirnf.  &  East.  10  and  6;  Dixon  v.  Thatcher,  14  Ark. 
144;  Hunt  v.  Strew,  33  Mich.  85;  Smith  v.  Plomer,  15  East.  607;  Bruce  v. 
Westervclt,  2  E.  D.  Smith,  (N.Y.)  240;  Cox  v.  Hardin,  4  East.  211;  Forth  v. 
Pursley,  82  111.152;  Wyman  z).  Dorr,  8  Me.  183;  Tcmpleman's  Case,  10 
Mod.  25. 

3  McLaughlin  v.  Piatti,  27  Cal.  452.  See,  also,  "Wilson  v.  Royston,  2  Ark, 
315. 

*  Rucker  v.  Donovan,  13  Kan.  251. 


BORROWER    CANNOT    SET   UP   TITLE.  63 

special  property  in  the  goods  so  placed  in  liis  possession, 
■which  is  superior,  until  it  is  lawfully  determined,  to  the  rights 
of  the  owner.  And  it  would  be  disastrous  to  commerce,  as 
well  as  unjust  to  such  bailee,  if  the  owner  were  permitted  to 
retake  possession  of  his  goods  without  first  discharging  the 
special  lien  of  the  bailee,  and  in  a  lawful  manner  putting  an 
end  to  his  title.  The  law  therefore  recognizes  and  protects 
the  right  of  possession  the  same  as  it  does  absolute  title.  ^ 

§  101.  The  same.  When  the  plaintiff  furnished  cloth  upon 
which  to  print  calico,  under  an  agreement  that  the  calico 
was  to  be  sold,  and,  after  deducting  advances,  commissions, 
and  cost  of  the  cloth,  the  balance  was  to  be  paid  to  the  printer, 
it  was  held  that  while  the  goods  were  in  the  hands  of  a  factor 
for  sale,  the  sheriff  could  not  levy  on  them  by  virtue  of  an 
attachment  or  execution  against  the  printer.  The  factor  in 
such  case  having  a  special  property  in  the  goods,  with  posses- 
sion and  the  right  of  possession,  process  against  the  printer 
was  regarded  the  same  as  process  against  any  stranger. 2  So, 
when  a  factor  advances  money  on  goods  stored  with  him,  and 
has  a  lien  for  his  advances,  the  owner  cannot  sustain  replevin 
until  he  tenders  the  advances  and  expenses.-'^ 

§  102.  Ownership  not  necessarily  determined  in  this  action. 
The  general  ownership  of  property  is  not  necessarily  deter- 
mined in  replevin,  but  the  right  of  possession  always  is.* 
Where  tlie  plaintiff,  who  was  the  general  owner,  sued  a  rail- 
road company  for  goods  which  it  refused  to  deliver  unless  the 
plaintiff  signed  a  receipt  stating  that  they  were  in  good  order, 
the  detention  was  held  to  be  rightful;  the  company  had  a 
right  to  require  such  a  receipt;  that  the  plaintiff  had  a  right 
to  examine  the  goods  at  the  time  and  place  of  delivery,  and 
before  he  could  insist  on  removal. ^ 

§  103.  Borrower  cannot  set  up  title.  A  simple  borrower 
of  property  cannot  set  up  title  in  himself  against  his  bailor; 

'  Williams  v.  West,  2  Ohio  St.  85. 
2  Wood  V.  Orser,  25  N.  Y.  348. 

3Tyus  V.  Rust,  34  Geo.  382.     See,  also,  McCoy  -p.  Cadle,  4  Iowa,  558; 
Corbitt  V.  Heisey,  15  Iowa,  2fl7. 
*  Warner  v.  Matthews,  18  111.  83;  Rogers  v.  Arnold,  12  Weud.  30. 
» Skinner  v.  C.  R.  1.  &  P.  R.  R.,  12  Iowa,  191. 


64  PLAINTIFF   MUST   HAVE   EIGHT   TO    POSSESSION. 

he  must  restore  the  property  before  he  can  assert  ownership  in 
himself.  A  person  claiming  to  be  the  owner  cannot  be  per- 
mitted to  employ  such  means  to  obtain  possession  of  goods 
and  then  hold  under  pretense  of  superior  title.  The  act  of 
borrowing  is  such  a  recognition  of  the  lender's  title  as  estops 
the  borrower  from  asserting  ownership  until  after  he  has  sur- 
rendered the  goods.  1  So,  when  property  was  seized  and  the 
owner  gave  the  officer  a  receipt  for  it,  and  then  refused  to 
deliver  it,  he  was  not  allowed  to  set  up  title  in  himself  as 
against  the  officer  when  sued  by  the  latter. ^ 

§  104.  Carrier  cannot  show  title  in  third  party  as  a  defense 
to  an  action  by  the  shipper  or  consignee.  Neither  can  a  car- 
rier who  acquired  possession  from  a  shipper  excuse  himself 
lor  a  non-delivery  by  showing  title  in  a  third  party  or  in  him- 
self. Though  a  seizure  of  the  property  upon  a  writ  of 
replevin,  or  other  legal  process  against  the  shipper  or  consignee 
might  be  shown,  and  would  constitute  a  good  defense  to  the 
carrier  in  an  action  against  him  for  the  goods.^ 

§  105.  The  legal  title  will  prevail  over  the  equitable.  In 
this  action,  as  in  other  actions  at  law,  legal  title  will  in  all 
cases  prevail  over  a  mere  equitable  title,^  but  the  fact  that  the 
plaintiff  holds  only  as  trustee  for  another,  or  as  guardian  or 
executor,  will  not  debar  him.  So  long  as  he  holds  the  legal 
title,  with  the  right  to  immediate  possession,  he  may  sustain 
replevin.  5 

§  106.  An  assignee  in  bankruptcy.  An  assignee  in  bank- 
ruptcy takes  the  title  of  the  bankrupt,  and  is  entitled  to  tlie 
]>ossession  of  the  goods  the  same  as  the  bankrupt  was  before 
the  bankruptcy.  Proceedings,  however,  by  the  assignee  to 
recover  the  property  of  the  bankrupt,  do  not  usually  take  the 

>  Simpson  v.  Wrenn,  50  111.  224. 

«  Brusley  v.  Ilamiltoa,  15  Pick.  40. 

3  G.  W.  Ry.  Co.  V.  McComas,  33  111.  185. 

*  Heyland  v.  Badger,  35  Cal.  404;  Reese  v.  Harris,  27  Ala.  306;  Killian  v. 
Carrol,  13  Ired.  (N.  C.)  431. 

*  Bergesch  v.  Keevil,  19  Mo.  128.  A  father  who  is  the  natural  guardian 
for  his  minor  children  has  sufficient  right  to  the  possession  of  their  prop- 
erty  to  enable  him  to  sustain  replevin  against  one  who  wrongfully  takes  or 
detains  it.    Smith  v.  Williamson,  1  Har.  &  J.  (Md.)  147. 


EIGHT   TO    PRESENT    POSSESSIOIS.  65 

form  of  a  suit  in  replevin,  though  such  a  suit  would  doubtless 
be  sustained.  The  shorter  and  more  effective  course  is  by 
application  to  the  court  in  a  summary  proceeding  for  the  posses- 
sion of  the  goods.  A  bankrupt  has  title  against  all  but  his 
assignee.  1  When  in  replevin  against  a  sheriff  he  answered 
that  he  seized  the  goods  on  an  attachment  against  one  W.,  and 
that  afterwards  proceedings  in  bankruptcy  were  taken  against 
"W.,  who  was  adjudged  a  bankrupt,  and  that  the  assignee 
appointed  by  the  court  had  demanded  and  taken  all  the  goods, 
the  answer  was  regarded  as  a  sufficient  defense  for  the  slieriff.^ 
§  107.  Right  to  present  possession,  does  not  depend  on 
former  possession.  A  legal  right  to  tlie  possession  of  the 
goods  at  the  time  the  suit  was  begun  has  been  frequently  held 
to  be  all  that  is  essential  to  sustain  replevin.  But  what  cir- 
cumstances invest  a  party  with  this  right  remains  a  question 
unsolved  by  the  statement,  and  perhaps  no  rule  can  be  given 
which  will  apply  in  all  cases.  Where  the  plaintiff  asserts  the 
riglit  to  present  possession,  his  right  to  recover  does  not  depend 
on  the  question  as  to  whether  he  had  the  possession  at  any  former 
time,  but  as  to  whether  he  had  the  right  at  the  time  the  suit  was 
begun. 3  So,  when  the  plaintiff  is  not  entitled  to  bring  suit 
for  the  goods  without  prior  demand  for  the  possession,  and 
does  begin  suit  without  such  demand,  he  is  not  entitled  to 
possession  at  the  time  the  suit  was  begun,  and  cannot  succeed. * 
Any  fact  showing  that  the  plaintiff  in  replevin  had  no  right 
to  the  immediate  possession  when  he  began  his  suit  is  a  com- 
plete bar  to  the  action.  ^ 

'  Sawtelle  v.  Rollins,  23  Me.  199;  Fowler  v.  Down,  1  Bos.  &  Pull.  44; 
Hurst  V.  Gwennap,  2  Stark.  306;  Webb  v.  Fox,  7  Term.  R  392,  224. 

2  Bolander  v.  Gentry,  3G  Cal,  109. 

3  Stoughton  V.  Rappalo,  3  S.  &  R.  562;  Harlan  v.  Plarlan,  15  Pa.  St.  513; 
Shearick  v.  Huber,  6  Binn.  8 ;  Hunt  v.  Strew,  33  Mich.  85 ;  Herdic  v.  Youn"-, 
55  Pa.  St.  177 ;  Hatch  v.  Fowler,  28  Mich.  210;  Morgner  v.  Biggs,  46  Mo.  65. 
Contra,  see  Cobb  v.  Megrath,  36  Geo.  625. 

*  Aldcn  V.  Carver,  13  Iowa,  254.     See  Campbell  v.  Williams,  39  Iowa,  646. 

'  Consult  the  following  cases :  Belden  v.  Laing,  8  Mich.  503 ;  Clark  v.  West, 
23  Mich.  242 ;  Davidson  v.  Waldron,  31  111.  120 ;  Hill  v.  Freeman,  3  Cush.  260 '; 
Dixon  V.  Hancock,  4  Cush.  96 ;  Waterman  v.  Robinson,  5  Mass.  303 ;  Fairbank 
V.  Phelps,  22  Pick.  538 ;  Walcot  v.  Pomeroy,  2  Pick.121 ;  Whitwell  v.  Wells,  24 
Pick.  25 ;  Perley  v.  Foster,  9  Mass.  112 ;  Ludden  v.  Leavitt,  9  Mass.  104;  War- 
5 


6Q  PLAINTIFF    MUST    HAVE    EIGHT   TO    POSSESSION. 

§  108.  Rule  similar  to  that  in  trespass.  The  rule,  as  has 
been  shown,  is  similar  to  that  in  trespass  de  bonis  asjportatu^ 
and  this  latter  action  cannot  be  supported  unless  the  plaintiff 
liave  the  actual  or  constructive  possession  of  the  goods,  or  a 
general  or  special  property  in  them,  with  a  right  to  immediate 
possession  when  the  injury  was  committed.  It  is  not  essential 
that  the  plaintiff  should  ever  have  had  the  actual  possession, 
but  he  must  have  such  a  title  as  will  authorize  him  to  reduce 
the  goods  to  his  possession  when  he  pleases.  ^ 

§109.  Prior  rightful  possession ;  when  sufficient.  It  has 
been  stated  that  prior  riglitful  possession  of  i^roperty,  without 
any  other  title,  is  sufficient  to  sustain  the  action  against  a 
wrongdoer,  such  possession  being  a  good  title  until  a  better 
one  be  shown.  Prior  rightful  possession  is  of  itself  ^rmias 
facie  proof  of  title,  and  as  against  all,  except  the  owner,  is 

ren  v.  Leland,  9  Mass.  285;  Mitchell  v.  Roberts,  50  K  H.  48G;  Wallace  v. 
Brown,  17  Ark.  450;  Hill  «.  Robinson,  16  Ark.  92;  Britt  d.  Aylett,  6  Eng. 
(Ark.)  476;  Wilson  v.  Roj^ston,  2  Ark.  315;  Dixon  v.  Thatcher,  14  Ark.  141 ; 
Parsons  ■».  Boyd,  20  Ala.  117  Reese  v.  Harris,  27  Ala.  305 ;  Bryan  v.  Smith, 
22  Ala.  539;  Beazley  v.  Mitchell,  9  Ala.  780;  Parham  t).  Riley,  4  Cold. 
(Tenn.)  5.  Ownership  without  right  to  possession  is  not  sufficient.  Wil- 
liams «.  West,  2  O.  St.  88;  Tison's  Admr.  v.  Bowden,  8  Fla.  69;  Neflf  v. 
Thompson,  8  Barb.  213;  Johnson  v.  Neale,  6  Allen,  228;  Brown  ».  Cliick- 
opee  Falls  Co.,  16  Conn.  87;  Tomlinson  «.  Collins,  20  Conn.  365;  Smith  v. 
Orser,  43  Barb.  187;  Muggridge  «.  EvdTleth,  9  Met.  233;  Wade  xi.  Mason,  13 
Gray,  335;  Bradley  «.  Michael,  1  Cart.  (!nd.)  552;  Pangburn  v.  Patridge,  7 
John.  (N.  Y.)  140;  Hotchkiss  ■».  McVickar,  12  Johns.  403;  Clark  v.  Skin- 
ner,  20  John.  (N.  Y.)465;  Marshall  v.  Davis,  1  Wend  109;  Hall  ».  Tattle,  3 
Wend.  475;  Dubois  ■».  Harcourt.  20  Wend.  41 ;  Rogers  la.  Arnold,  12  Wend. 
30.  Prima  facie  title  better  than  possession.  La  Fontaine  v.  Greene,  17 
Cal.  296;  Emmons  v.  Dowe.  2  Wis.  322;  Rose  v.  Tolly.  15  Wis.  443;  Beck- 
with  V.  Philleo,  15  Wis.  224;  Sager  v.  Blain,  5  Hand,  (N.  Y.)  449;  Wymaa 
v.  Dorr,  3  Gr.  (Me.)  186;  Pierce  «.  Stevens,  30  Me.  (17  Shep.)  184;  South- 
wick  V.  Smith,  29  Me.  229;  School  Dist.  No.  5  v.  Lord,  44  Me.  384;  Melton 
V.  McDonald,  2  Mo.  45;  Ramsay  v.  Bancroft,  2  Mo.  151;  Bush  «  Lyon,  9 
Cow.  53 ;  Warner  v.  Hunt,  30  Wis.  201 ;  Harrison  -».  Mcintosh,  1  Johns.  380; 
Eisendrath  v.  Knauer,  64  111.  402;  Skinner  «.  Stouse,  4  Mo.  93. 

'  Putnam  v.  Wyley,  8  Johns.  432;  Cannon  v.  Kinney,  3  Scam.  9;  Hume 
V.  Tufts,  6  Blackf.  136;  Boise  v.  Knox,  10  Met.  40;  Bell  v.  Monahnn,  Dud- 
ley, (S.  C.)  38;  Crenshaw  i}.  Moore,  10  Geo.  384;  Luut  v.  Brown,  13  ]\Iaine, 
236 ;  Heath  v.  West,  8  Foster,  (N.  PI.)  101 ;  Muggridge  v.  Eveletli.  9  Met.  233. 
Contra,  Cobb  v.  Megralh,  36  Geo.  625. 


APPLICATION    OF    THE    EULE.  67 

sufficient  to  entitle  the  plaintiff  to  recover. ^  "Where  the  plain- 
tiff is  able  to  show  that  the  defendant  was  takini^  away  prop- 
erty of  which  he  had  just  before  been  in  possession,  claiming 
to  own  it,  it  is  sufficient,  at  least,  to  put  the  defendant  upon 
proof  of  his  title  or  right  to  possession,  and  in  the  absence  of 
such  proof  the  plaintiff  will  be  entitled  to  recover. 2  Such 
recovery  is  permitted  on  the  presumption  of  ownership,  which, 
in  the  judgment  of  the  law,  accompanies  actual  possession, 
but  which  may  be  rebutted  by  proof. ^ 

§110.  The  same.  If  the  right  of  the  plaintiff  is  better  than 
that  of  the  defendant,  whatever  it  may  be  with  regard  to  the  rest 
of  the  world,  he  can  recover.  Possession  is  sufficient  evidence 
of  right  against  every  one  who  is  not  the  true  owner  or  right- 
fully entitled  to  possession  by  virtue  of  some  superior  right.* 

§  111.  Application  of  the  rule.  The  rule  last  stated  requires 
some  care  in  its  application,  as  cases  are  found  where  the  doc- 
trine seems  to  be  denied.  Thus,  where  the  plaintiff's  title  is 
denied  in  the  pleadings,  naked  proof  of  possession  would  not 
suffice;  the  rule  in  such  cases  being  that  the  plaintiff  must 
make  out  his  title  by  proofs — i.e.,  he  must  recover  on  the 

1  Hunt  V.  Chambers,  1  Zab.  (21  N.  J.)  624. 

2  Morris  v.  Danielson,  3  Hill,  168. 

8  Moorman  v.  Quick,  20  Ind.  68;  Miller  v.  Jones'  Admr.,  26  Ala.  2G0; 
Sliomo  V.  Caldwell.  21  Ala.  448;  Bayless  v.  Lefaivre,  37  Mo.  119;  Duncan  v. 
Spear,  11  "Wend.  54;  Daniels  v.  Ball,  11  "VYend.  58  note;  Smith  »j.  Lydick, 
42  Mo.  209;  Johnson  -o.  Carnley,  10  N.  Y.  (Seld.)  579;  Davis?).  Loftin,  6  Tex. 
495;  Cook®.  Howard,  13  Johns.  276;  Demick  v.  Chapman,  11  Johus.  132; 
Pangburni).  Patrid/re,  7  Johns.  140;  Cresson  v.  Stout,  17  Johns.  116;  Wheeler 
V.  McFarlarid,  10  Wend.  322;  Schermerhorn  «.  Van  Volkenbur2;h,  11  Jolins. 
529.  "Possession  is  sufficient  as  against  all  persons  not  having  a  better 
title."  Bogard  v.  Jones,  9  Humph.  (Tenn.)  788;  Sawtelle  v.  Rollins,  23  Me. 
199;  Morris  v.  Danielson,  3  Hill,  168;  Ingersoll  v.  Emmerson,  1  Carter.  76. 
*'  Possession  is  &  right  of  property  against  all  tlie  world  but  the  owner." 
Armory  v.  Delamire,  1  Str.  505;  Summons  v.  Austin,  86  Mo.  308. 

*  Van  Namee  v.  Bradley,  69  111.  301 ;  Freshwater  v.  Nichols,  7  Jones,  (N. 
C.)  252.  Possession,  if  recently  before  the  taking,  would  raise  a  presump- 
tion of  ownership  wliich,  unless  contradicted,  would  be  sufficient.  Hunt 
V.  Chambers,  1  Zab.  (21  N.  J.)  624;  Morris  v.  Danielson,  3  Hill,  168;  Smitli 
V.  Graves,  25  Ark.  461. 

5  Gartside  v.  Nixon,  43  Mo.  188;  Gray  v.  Parker  38  Mo.  160;  Harrison  v. 
M'Intosh,  1  Johns.  380. 


68  PLAINTIFF   MUST   HAVE    EIGHT   TO    POSSESSION. 

strenortli  of  his  own  title,  and  not  on  the  weakness  of  his  aJ- 
versary's,  in  support  of  which  many  cases  may  be  cited. 

§112.  The  same.  Wliere  the  title  is  placed  in  issue,  and 
proof  of  possession  is  made  only  as  a  circumstance  tending  to 
show  title,  the  question  of  title,  and  not  mere  possession,  must 
govern,  1  the  burden  of  proof,  in  such  cases,  being  on  tlie 
plaintiff. 2  One  of  the  reasons  for  this  rule  is  found  in  the 
fact  that  tlie  plaintiff's  title  or  right  of  possession  in  this  ac- 
tion is  always  in  question.  Unless  admitted,  it  must  be  main- 
tained by  a  preponderance  of  proof.  The  defendant's  title  is 
in  no  way  impeached  by  the  plaintiff's  affidavit,  or  by  the  writ, 
if  he  fails  to  establish  his  title  at  the  trial. ^ 

§113.  Rightful  possession  evidence  of  title.  But,  posses- 
sion of  goods  under  a  claim  of  ownership  is  of  itself  one  of 
the  strongest  evidences  of  title,  and  the  plaintiff  who  has 
shown  such  possession  has  fully  complied  with  the  obligation 
to  show  title;  and  if  such  possession  be  shown  to  be  long  con- 
tinued and  open,  under  a  claim  of  ownership,  the  law  will 
■  presume  title;*  and  naked  claim  of  title,  no  matter  how  form- 
ally pleaded,  ought  not  to  be  sufficient  to  overcome  such  title. 
If,  therefore,  the  plaintiff  is  able  to  show  an  undisputed  pos- 
session, under  a  claim  of  ownei-ship  for  a  length  of  time,  such 
possession  alone  will  be  sufficient  to  entitle  him  to  recover 
ao-ainst  a  defendant  who  has  wrongfully  deprived  him  of  such 
possession,  unless  the  latter  show  something  more  than  a  mere 
assertion  of  title  in  his  pleading. ^ 

§  114.    Conflicting  claims  to  possession.     Where  the  plain- 

>  Hatch  V.  Fowler,  28  Mich.  20(5. 

*  Patterson  v.  Fowler,  22  Ark.  398;  Simcoke  v.  Fredericks,  1  Ind.  54.  In 
Broadwater  v.  Darne,  10  Mo.  285,  the  court  says  that  bare  possession,  with- 
out other  right,  will  not  support  the  action.  "  When  the  defendant  has 
become  bankrupt,  and  cannot  defend,  it  will  not  do  away  with  the  neces- 
sity of  proof  on  the  part  of  the  plaintiff."  Hallett  v.  Fowler,  8  Allen,  93. 
In  this  action,  as  in  ejectment  and  trover,  the  plaintiff  must  maintain  his 
title,  or  fail  in  his  action.    Davidson  v.  Waldron,  31  111.  120. 

8  Dows  V.  Green,  32  Barb.  490;  Barnes  v.  Bartlett,  15  Pick.  75;  Bogard  v. 
Jones,  9  Humph.  (Tenn.)  739;  Fowler  v.  Down,  1  Bos.  &  Pull.  44. 

4  Shomo  V.  Caldwell,  21  Ala.  448;  Robinson  v.  Calloway,  4  Ark.  100; 
Sprague  v.  Clark,  41  Vt.  6;  Di.xou  v.  Thatcher,  14  Ark.  141. 

'  Smith  V.  Graves,  25  Ark.  461;  2  Greenleaf  on  Ev.  637. 


POSSESSION FINDER   OF   rEOPERTT.  69 

tiff  shows  ownership  of  the  property  in  himself,  a  short  pos- 
session by  tlie  defendant,  without  plaintiff's  knowledge  or 
acquiesence,  will  not  amount  to  title  in  the  defendant ;i  and 
when  possession  alone  is  relied  upon  by  plaintiff,  a  prior  pos- 
session of  as  high  a  character  b^'  the  defendant,  in  the  absence 
of  any  proof  of  ownership,  is  a  better  proof  of  a  right  to 
present  possession  than  subsequent  possession  of  the  plaintiff.  ^ 

§  115.  The  possession  must  be  under  a  claim  of  right.  As 
before  stated,  actual  possession  of  property,  when  accompanied 
by  a  claim  of  ownership,  is  'prima  facie  evidence  of  such  own- 
ership. And  the  sim])le  possession  of  chattels,  without  other 
title,  is  regarded  a  sufficient  evidence  of  ownership  to  sustain 
an  action  against  one  who  wrongfully  usurps  possession  ;3  but 
this  must  be  possession  by  the  plaintiff  in  his  own  right,  and 
under  a  claim  of  right,  not  as  servant  of  another.  A  servant 
who  has  the  goods  of  his  master,  and  who  must  surrender 
them  on  demand,  has  no  such  possession  as  will  enable  him  to 
sustain  the  action.*  The  possession  must  also  be  under  a  claim 
of  right  in  the  plaintiff  himself  ^  It  must  also  be  a  rightful 
possession,  acquired  without  force  or  fraud. ^ 

§  116.  But  need  not  be  under  a  claim  of  title.  Finder  of 
property.  But  the  possession  need  not  be  accompanied  by  a 
claim  of  absolute  ownership.  The  finder  of  property  has  an 
undoubted  right  to  retain  possession  against  all  the  world  until 
the  rightful  owner  appear  to  claim  his  property,  or  the  author- 
ities lawfully  interfere  to  take  charge  of  it,  as  they  do  in  some 
cases;  and  if,  while  the  finder  is  in  possession,  looking  for  the 
owner,  another,  by  fraud  or  superior  force,  take  the  property 
from  him,''  trover  or  replevin  will  undoubtedly  lie,  at  the  suit 

'  Tompkins  ».  Ilaile,  3  Wend.  406. 

2  Summons  v.  Austin,  36  Mo.  308. 

3  Davis  v,  Loftin,  6  Tex.  497;  Scott  «.  Elliott,  Phil.  (N.  C.  L.)  104. 

•«  Mitchell  -0.  ninman,8  Wend.  667;  Brownell  v.  Manchester,  1  Pick.  233; 
Stanley  «.  Gaylord,  1  Cash.  536;  Harris  v.  Smith,  3  S.  &  R.  23;  Bond  tJ. 
Padelford,  13  Mass.  395 ;  Perley  n.  Foster,  9  Mass.  114 ;  Summons  «.  Austin, 
36  Mo.  308. 

5  Cases  last  cited.     Holliday  «.  Lewis,  15  Mo.  406. 

6  Hatch  n.  Fowler,  28  Mich.  205;  Bnyless  v.  Lefaivre,  37  Mo.  120. 
'  Armory  «.  Delamire,  1  Stra.  505. 


70  PLAINTIFF   MUST    HAVE   EIGHT   TO   POSSESSION. 

of  the  finder.  So  money  picked  np  on  the  floor  of  a  shop,i 
or  found  in  a  raih'oad  car,^  belongs  to  the  finder,  rathei  than 
to  the  owner  of  the  sliop  or  car,  and  he  may  recover  it  or  its 
value; 3  but  money  laid  down  by  the  owner  in  a  shop  or  bank 
is  regarded  as  left  in  the  custody  of  the  owner  of  the  shop  or 
bank,  rather  than  in  the  care  of  a  chance  finder.*  Where  one 
had  a  simple  authority  to  recover  animals  which  had  strayed, 
and  of  which  he  never  had  possession,  and  for  which  he  was  in 
no  way  responsible  to  the  owner  until  he  should  have  posses- 
sion, he  had  uo  such  title  as  would  authorize  him  to  bring 
replevin.^ 

§  117.  The  same.  The  plaintiflF  bought  an  old  safe,  and  left 
it  for  sale,  with  permission  to  the  defendant  to  use  it  until  sold. 
Defendant  afterwards^  found  a  package  of  money  in  it.  The 
plaintifi"  demanded  the  money,  which  was  refused.  He  then 
demanded  the  safe  and  contents.  The  safe  was  at  once  deliv- 
ered, and  plaintiff  sued  for  the  money.  Plaintiff  did  not  claim 
any  right  to  the  money  as  against  the  real  owner,  but  claiined 
that,  as  against  the  defendant,  he  had  a  better  right.  The 
plaintiff  never  had  possession,  except  unwittingly,  and  it  was 
held,  as  against  him,  the  finder  had  the  superior  right.  The 
place  of  finding  did  not  change  the  rights  of  the  parties. ^ 
Perhaps,  however,  if  the  question  had  been  between  the 
original  owner  of  the  safe  and  the  finder,  the  result  would 
have  been  difterent.  Under  the  cases  cited  in  the  preceding 
section,  the  money  would  probably  have  been  held  to  be  left 
in  the  care  of  the  owner  of  the  safe. 

§  118.  The  lien  of  a  finder  for  reward  offered.  The  finder 
of  pi'operty  lost  or  stolen  has  a  lien  on  it  for  the  reward  offered 
by  the  owner  for  its  recovery.     The  owner,  by  public  offer  of 

'  Bridges  v.  Hawkesworth,  7  E.  L.  «fe  Eq.  Rep.  434. 
s  Tatum  v.  Sharpless,  6  Phila.  18. 

8  Consult  llegiaa  v.  West,  1  Dearsley  C.  C.  403;  People  v.  McGarren,  17 
Wend.  460. 

*  State®.  ]\IcCaun,  19  Mo.  249;  McAvoy  «.  Medina,  11  Allen,  548;  Law- 
rence V.  The  State,  1  Humph.  (Tenu.)  238;  McLaughlin  v.  Waite,  9  Cow. 
eVO;  ]\IcLaughlin  v.  Waite,  5  Wend.  405. 

*  Holliday  v.  Lewis,  15  Mo.  400. 
«  Dm  fee  V.  Jones,  11  R.  I.  590. 


"'<< 


^■'  ^0/f.. 


PKOPERTY    NECESSARY   TO   SUSTAIN    EEPLEVIN.  71 

reward,  constitutes  the  finder  his  bailee,  to  take  and  care  for 
the  pro}3erty;i  bat  a  finder  who  volnntarilj  incurs  expense  in 
keeping  or  caring  for  property  he  lias  found,  unless  necessary 
for  its  preservation,  has  no  right  to  retain  it  for  the  purpose 
of  enforcing  his  claim. 

§  119.  Finder  of  a  note  has  no  right  to  colleet  it.  The 
finder  of  a  note,  bill  or  lottery  ticket,  wliile  he  may  retain  it 
as  against  all  but  the  owner,  has  no  such  right  to  the  money 
due  or  paj'able  tliereon  as  will  authorize  him  to  recover  it  from 
the  person  promising  to  pay.^ 

§  1 20,  Where  the  title  is  the  issue,  good  title  must  be  shown. 
A  party  rightfully  in  possession  cannot,  as  against  an  intruder 
or  wrong  doer,  be  required  to  show  title  beyond  proof  of  his 
possession  in  the  first  instance;  but  when  he  undertakes  to 
show  title,  and  bases  his  right  on  title,  rather  than  possession, 
he  must  show  a  sufficient  title. ^ 

§  121.  The  nature  of  the  special  property  necessary  to  sus- 
tain replevin.  The  exact  nature  of  the  special  j)roperty  which 
will  sustain  the  action  has  not  been  very  accurately  defined. 
Greenleaf  says:*  "  Special  property,  in  a  strict  sense,  may  be 
said  to  consist  in  the  lawful  custody  of  property  with  a  right 
of  detention  against  the  general  owner.  But  a  lower  degree 
of  interest  will  sometimes  sufiice  against  a  stranger  or  wrong 
doer.  For  a  wrong  doer  is  not  permitted  to  question  the  title 
of  one  in  actual  possession  of  goods  whose  possession  lie  has 
invaded."  This  doctrine  was  cited  approvingly  in  an  Illinois 
case. 5  A  definition  of  this  special  property  ample  enough  to 
embrace  all  cases  would  be  too  general  to  be  of  great  value  in 
any  particular  case.  A  statement  of  some  of  the  principles 
which  govern  in  particular  cases  will  convey  the  best  idea  of 
the  rule.  When  one  has  a  temporary  property,  with  right  of 
possession  of  a  chattel,  and  delivers  it  to  the  general  owner 

>  Cummings  v.  Gann,  52  Pa.  St.  489. 

«  McLaughlin  v.  Waite,  5  Wend.  405;  McLaughlin  v.  Waite,  9  Cow.  G70; 
Killian  v.  Carrol,  13  Ired.  (N.  C.)431. 
3  Hatch  V.  Fowler,  28  Mich.  205. 
*  Greenleaf  on  Evidence,  637. 
»  Eiseudrath  v.  Knauer,  64  111.  402 


72  PLAINTIFF    MUST    HAVE   EIGnT   TO    POSSESSION. 

for  a  special   purpose,  he  may  maintain  replevin  for  it  after 
that  purpose  has  been  accomplished.* 

§  122.  General  owner  usually  entitled  to  possession ;  excep- 
tions. As  a  general  rule  it  may  be  said  that  a  right  of  prop- 
erty carries  with  it  a  right  of  possession. ^  But  the  right  of 
the  general  owner  to  present  possession  of  property  may  be 
suspended  in  a  variety  of  ways;  as  when  he  deposits  it  as 
security  for  a  loan,  or  where  he  delivers  possession  to  a  me- 
chanic for  repairs,  the  mechanic  has  a  right  to  retain  the  prop- 
erty until  reasonable  or  stipulated  compensation  is  paid.  In 
these  and  similar  cases  the  riirhts  of  the  general  owner  await 
the  temporary,  but  superior  right  of  the  bailee,  and  until  these 
latter  are  discharged  the  bailee,  and  not  the  general  owner, 
will  be  the  proper  plaintiif  in  replevin. ^ 

§  123.  Liens.  In  discussing  the  question  as  to  what  title 
or  what  special  property  in  the  plaintiif  is  sufficient  to  sustain 
the  action  of  replevin,  or  what  title  in  the  defendant  will  defeat 
it,  there  is  no  question  of  more  importance  than  the  question 
of  liens.  The  general  principle  may  be  stated  that  when  one 
has  possession  of  goods  with  a  valid  lien  thei-eon  against  the 
owner,  the  owner's  right  to  possession  is  suspended  until  the 
lien  is  legally  discharged. ■* 

§  124.  The  same.  Among  the  most  familiar  instances  of 
liens  are  bailees  for  special  purpose.  The  workman  who  repain 
a  carriage  or  watch  for  the  owner  has,  unless  some  special  con- 
tract exists,  a  lien  on  the  article  until  paid  for  his  services.* 
So  warehousemen  are  entitled  to  a  lien  on  property  stored 
with  them  until  their  proper  charges  are  paid."  The  taker  up 
of  a  stray  animal,  who  properly  conforms  to  the  law  relating 

>  Roberts  v.  Wj-att,  2  Taunt,  268;  Eisendrath  v.  Kanuer,  64  111.  402;  Rich 
v.  Ryder,  105  Mass.  310. 

2  Wilson  V.  Roj'ston,  2  Ark.  315. 

3  Wallace  v.  Brown,  17  Ark.  450. 

4  Moore  v.  Hitchcock,  4  Wend.  293;  Everett  v.  Coffin,  G  Wend.  G03;  Bnsh 
V.  Lyon,  9  Cow.  52;  Jones  v.  Sinclair,  2  N.  H.  319;  M'Combie,  v.  Davies  7 
East.  5 ;  Wilbraham  v.  Snow,  2  Saund.  47. 

*  Hollingswortii  v.  Dow,  19  Pick,  228;  Morgan  v.  Congdon,  4  Comst.  552; 
M'Intyre  v.  Carver,  2  Watts  &  Serg.  392;  Curtis  v.  Jones,  3  Denio,  590. 
6  Flatt  V.  Hibbard,  7  Cow.  497 ;  Tyus  v.  Rust,  34  Geo.  3.2a. 


TAKING    UP   OF   AN    ESTEAT,  73 

to  estrajs,  lias  a  lien  for  his  lawful  charp^es.^  An  innkeeper 
wlio  entertains  the  traveler  has  a  lien  for  his  charges  on  tlie 
chattels  of  his  guest  in  the  inn  or  its  stables. ^  "When  a  factor 
advances  money  on  goods  consigned  to  his  care  or  for  sale  on 
commission,  he  has  a  lien,  or  qualified  right  to  possession  of 
the  goods,  and  may  retain  them  until  his  lien  is  satisfied. ^  In 
these  and  other  kindred  cases,  when  a  lien  exists  the  right  of 
the  general  owner  is  subservient  to  the  lien,  and  before  he  can 
be  permitted  to  assert  his  title  he  must  show  that  the  lien  has 
been  discharged. 

§  125.  The  same.  "When  one  has  a  lien  on  property  which 
is  forcibly  and  clandestine!}^  taken  from  him,  he  can  sustain 
replevin  for  its  recovery.  Thus,  a  hotel  keeper  has  a  lien  on 
his  guest's  horses;  and  in  some  States  a  livery  stable  keeper 
has  a  lien  on  horses  boarded  with  him;  and  when  he  keeps 
several  for  tlie  same  owner  the  lien  is  not  against  each  horse, 
but  is  against  the  owner  and  upon  all  the  horses,  and  one  may 
be  detained  for  the  keeping  of  all.'* 

§126.  The  same.  Taking  up  of  an  astray.  "When  a  person 
has  taken  up  an  estray,  and  advertised  it  according  to  law,  he 
has  a  lien  upon  and  a  right  to  retain  it  until  the  lien  is  satisfied, 
and  may  maintain  replevin  against  the  owner  who  takes  it 
away  without  paying  the  lawful  charges. ^  But  this  lien  is 
given  by  statute.  The  owner  cannot  be  deprived  of  his  prop- 
erty, or  the  right  to  immediate  possession,  except  by  a 
proceeding  in  accordance  with  the  statute.  A  party,  there- 
fore, who  asserts  title  under  a  law  respecting  the  taking  up 
of  estrays,  must  comply  strictly  with  the  provisions  of  the 
statute,  or  his  lien  will  be  lost.^  The  taker  up  of  an  estray, 
who  duly  complies  with  the  law  with  reference  thereto,  has  an 
unquestionable  lien  upon  the  property  until  his  legal  charges 

1  Phelan  v.  Bonham,  4  Bn^.  (Ark.)  389;  Bayless  v.  Lefaivre,  37  Mo.  119. 

2  Thompson  v.  Lacy,  3  Barn.  &  Aid.  287 ;  Turrill  v.  Crawley,  13  Ad.  & 
El.  197;  Sunbolf  v.  Alford,  3  Mees.  &  W.248. 

3  Wood  v.  Orser,  25  N.  Y.  349;  Brownell  v.  Carnley.  3  Duer,  (N.  Y.)  9; 
Holbrook  v.  Wight,  24  Wend.  169. 

<  Young  V.  Khnbal!,  23  Pa.  St.  195. 

»  Ford  ».  Ford,  3  Wis.  399 ;  Bayle.ss  v.  Lefaivre,  37  Mo.  119. 

•  Brown  v.  Smith,  1  K  H.  36;  Morse  v.  Reed,  28  Me.  481. 


74  PLAINTIFF    MOST   HAVE    EIGHT   TO    POSSESSION. 

are  paid.  And,  to  the  extent  of  his  lien,  he  has  a  special 
property  in  the  animal  taken  up,  and  may  assert  it,  it  would 
seem,  against  the  owner  who  takes  the  property  without 
complying  with  the  law.i 

§  127.  Goods  lost  at  sea.  Where  goods  were  found  upon 
the  ocean,  and  by  the  salvors  brought  into  port,  it  was  held 
that  the  ownership  had  been  changed  to  the  insurer  by  the 
abandonment;  that  the  insurers  of  goods  abandoned  to  them 
had  acquired  property  in  them,  and  that  they,  with  the  owners 
of  the  goods  not  insured,  were  the  owners,  subject  to  the  lien 
of  the  salvors;  that  the  salvors  had  simply  a  lien,  and  had  no 
right  to  sell  or  pledge  the  goods,  and  a  party  purchasing  from 
them  could  not  sustain  replevin. 2 

§  128.  Goods  in  possession  of  one's  servant.  When  goods 
are  taken  from  a  carrier  by  process  against  him,  the  owner  may 
sustain  an  action  against  the  taker,  the  owner  being  regarded 
as  in  possession,  and  tlie  carrier  as  his  servant.  Such  a  case 
presents  a  marked  distinction  from  the  case  of  one  who  hires 
goods  for  a  stated  period. ^ 

§  129.  Contract  for  purchase  of  property  does  not  neces- 
sarily confer  a  right  of  possession.  When  the  plaintiff  claims 
to  have  bought  the  pro])erty,  of  which  he  never  had  the  pos- 
session or  riglit  to  possession,  replevin  will  not  lie;  the  proper 
remedy  being  an  action  for  a  failure  to  complete  the  contract 
of  sale.*  Plaintiff  bought  a  horse  for  one  thousand  dollars, 
and  paid  one  hundred  dollars,  and  was  to  have  the  liorse  on 
payment  of  nine  hundred  dollars  more  within  thirty  days.  It 
was  held  to  be  an  executory,  not  an  executed  contract.  And 
the  fact  that,  pending  the  contract,  the  defendant  trotted  the 
horse,  would  not  enable  the  plaintiff*  to  maintain  trover  until 
after  the  conditions  were  complied  with.^ 

»  Ford  V.  Ford,  3  Wis.  399 ;  Morse  v.  Reed,  28  Me.  481 ;  Barnes  v.  Tanne- 
hill,  7  Blackf.  600;  Bayless  v.  Lefaivre,  37  Mo.  119;  Hendricks  v.  Decker,  35 
Barb.  298. 

2  Whitwell  V.  Wells,  21  Pick.  31. 

2  G.  W.  R.  R.  Co.  V.  McComas,  33  111.  186. 

*  Ilavcrstick  v.  Fergus,  71  111.  105. 

»  Whitcomb  v.  Huugerford,  42  Barb.  177.    See,  also,  Stevens  v.  Eno,  10 


OFFICEK   LEVYING   PKOCESS.  75 

§  130.  An  officer  levying  process  has  a  special  property, 
and  a  right  to  possession.  An  officer  has  a  special  property  by 
the  lien  of  an  execution  in  his  hands,  and  has  sufficient  prop- 
erty in  goods  that  are  levied  on  to  sustain  replevin  against  the 
owner  who  is  defendant  in  the  process,  or  any  one  who 
wrongfully  takes  them.i  But  an  officer  has  no  such  lien  until 
he  has  actually  levied  on  the  property  ;2  and  after  the  levy  and 
execution  was  set  aside,  the  officer  could  not  recover. ^  AVhen 
an  officer  claims  title  to  property  upon  a  process  in  his  hands, 
he  must  not  ouly  show  a  process  regular  on  its  face,  but  a 
valid  judgment.'* 

§  131.  Possession  of  a  receiptor  to  an  officer.  But  whether 
a  receiptor  to  the  sherilf,  who  has  levied  on  the  goods,  can 
maintain  this  action,  is  a  question  upon  which  the  authorities 
are  somewhat  variant.  In  New  York,  the  possession  of  the 
receiptor  is  the  possession  of  the  officer. ^  When  goods  were 
attached  by  the  sheriff,  and  left  iu  the  hands  of  the  debtor,  who 
gave  a  receipt,  and  they  were  afterward  attached  by  anotlier 
creditor,  the  attachment  by  the  second  officer  might  be  re- 
garded as  a  trespass  on  the  right  of  the  first,  but  not  on  the 
right  of  the  debtor.  The  latter  cannot  complain  as  owner,  and 
also  as  bailee  of  the  first.  He  has  no  such  special  property  in 
the  goods  as  would  entitle  him  to  bring  replevin  in  his  own 
name.^ 

Barb.  95;  Lester  v.  East,  49  Ind.  588;  Roper  v.  Lane,  9  Allen,  (Mass.)  510; 
Updike  V.  Heuiy,  14  111.  378;  Golder  v.  Ogden,  15  Pa.  St.  528. 

'  Martin  v.  Watson,  8  Wis.  315 ;  Rhoads  v.  Woods,  41  Barb.  471 ;  Mulheisen 
«.  Laae,  82  111.  117;  Dayton  v.  Fiy,  29  111.  529;  Dezell  v.  Odell,  3  Hill,  215; 
Morris  v.  Van  Voast,  19  Wend.  283;  Clark  v.  Norton,  6  Minn.  412;  Lock- 
wood  -y.  Bull,  1  Cow.  333;  Dunkin  v.  McKee,  23  Ind.  447;  Walpole  v. 
Smith,  4  Blackf.  304;  Whitney  v.  Burnette,  3  Wis.  625. 

^  Mulheisen  v.  Lane,  83  111.  117.  "  The  sheriff  who  has  seized  the  goods 
of  a  debtor  on  execution  has  a  special  property  in  them,  and,  if  they  are 
taken  from  him,  he  may  sustain  trover,  trespass  or  replevin."  Ladd  v. 
North,  2  Mass.  516;  Pomeroy  ».  Trimper,  8  Allen,  399;  Fitch  b.  Dunn,  3 
Blackf.  (Ind.)  142. 

8  Walpole  V.  Smith,  4  Blackf.  (Ind.)  804. 

4  Yates  V.  St.  .John,  12  Wend.  74;  Earl  v.  Camp,  16  Wend.  563;  Dunlap  v. 
Hunting,  3  Denio,  643. 

6  Mitchell  «.  Hinman,  8  Wend.  667;  Phillips  v.  Hall,  8  Wend.  610. 

«  Brown  v.  Crocket,  22  Me.  540.    See  Butts  v.  Collins,  13  Wend.  139; 


76  PLAINTIFF   MUST    HAVE    RIGHT   TO    POSSESSION. 

§  132.  An  agent  who  is  responsible  to  the  owner  has  suf- 
ficient possession  to  sustain  replevin.  An  auctioneer  agent 
who  is  responsible  to  the  owner  may  have  replevin  for  goods 
committed  to  his  possession  and  sold  by  him,  and  not  paid  for 
according  to  tlie  conditions  of  the  sale;  this  being  a  special 
property  sufficient  to  sustain  the  action. i 

§  133.  Wrongful  seizure  or  sale  by  an  officer  does  not  affect 
owner's  right.  The  wrongful  sale  of  one's  property,  on  an 
execution  against  a  third  party,  does  not  divest  title,  and  the 
owner  can  sustain  replevin  ;2  and,  generally,  in  all  cases  where 
an  officer  wrongfully  seizes  and  sells  goods,  the  title  is  not 
divested  by  such  sale,  and  the  owner  may  have  replevin  for 
the  goods  against  the  purchaser. ^ 

Miller  v.  Adsit.  16  Wend.  335;  Browning  v.  Hanford,  5  Hill,  588;  Dezell  o. 
Odell,  3  Hill,  215.     Contra,  Burrows  v.  Stoddard.  3  Conn.  IGO. 

»  Tyler  v.  Freeman,  3  Cush.  261. 

2  Dodd  V.  McCraw,  8  Ark.  83. 

^Eggleston  v.  Mundy,  4  Mich.  295;  Ward  v.  Taylor,  1  Pa,  St.  288; 
Shearick  v.  Huber,  6  Binn.  (Pa.)  2. 


DOES    NOT   LIE    AGAINST    ONE    NOT    IN    POSSESSION. 


T7 


CHAPTEK  Y. 


POSSESSION  BY  THE  DEFENDANT. 


Section 
Replevin  does  not  lie  against 
one  not  in  possession  of  the 

goods       

Tliesame;  some  exceptions 
The  writ  lies  only  for  property 

in  existence 
Proof  that  tJie  defendant  was 
about  to  take  possession  will 
not  sustain  replevin 
Neglect  to  deliver;  when  not  a 
conversion       .... 

The  same 139 

Taking  under  a  license  not  a 

conversion       .... 

A  firm  may  be  responsible  for 

the  act  of  one  member  . 
Taking  by  an  officer;  when  suf- 
ficient to  render  him  liable  in 
this  action       .... 


134 
135 

136 


137 


138 


140 


141 


142 


Section 

Possession  by  an  officer  not  pos- 
session of  the  creditor  in  the 
writ 

Servant  not  usually  liable  for 
holding  his  master's  goods    . 

Where  defendant  has  put  the 
goods  out  of  his  possession  . 

Or  put  it  out  of  the  officer's 
power  to  execute  the  writ 

Fraudulent  transfer  of  goods    . 

Clothing  worn  on  the  person 
not  subject  to  the  writ   . 

Possessiou  after  dismissal  of  an 
action  of  replevin  . 

Defendant  acquiring  possession 
with  plaintiflF's  consent 

The  action  permitted  in  some 
States  without  delivery  of  the 
goods       


143 

144 
145 

146 

147 

148 
149 
150 


151 


§  134.  Replevin  does  not  lie  against  one  not  in  possession 
of  the  goods.  It  is  also  a  rule  in  replevin  that  the  action 
only  lies  against  a  defendant  who  is  in  possession  of  the  goods 
at  the  time  the  demand  is  made  or  suit  is  begun.  In  order 
to  hold  a  partj  liable  for  the  immediate  delivery  of  the  goods, 
he  must  have  the  actual  or  constructive  possession  of  them  at 
the  time,  so  that  he  can  comply  with  the  demand  if  made,  or 
with  the  mandate  of  the  writ  for  delivery  if  it  should  issue 
against  him.i     A  wrongful  taking  unless  followed  by  a  wrong- 


'  Ames  V.  Miss.  Boom  Co.,  8  Minn.  470;  Brockway  v.  Burnap,  8  How. 
Pr.  Rep.  188;  Roberts  v.  Randel,  3  Sandf.  (N.  T.)  707;  Bradley  v.  Gamelle, 
7  Minn.  831;  Hall  v.  White,  106  Mass.  600;  McCormick  v.  McCormick,  40 


78  POSSESSION   BY    THE    DEFENDANT. 

fill  detention  will  not  sustain  the  action.^  In  trespass,  the 
restoration  of  the  goods  would  be  no  bar  to  the  suit.  The 
action  having  once  accrued,  no  act  of  the  defendant's  can 
deprive  the  plaintiff  of  it;  but  replevin,  for  the  delivery  of 
specific  goods,  only  lies  in  case  the  goods  are  detained.  Where 
the  statute  allows  the  plaintiff  to  have  judgment  for  the  goods 
or  for  their  value,  at  his  option,  the  reason  for  this  rule  would 
not  apply. 

§  135.  The  same ;  some  exceptions.  For  instance,  a  wrong- 
ful taking  followed  by  an  immediate  restoration  of  the  goods; 
or,  where  the  taking  though  wrongful  was  in  ignorance  of  the 
plaintiff's  rights,  and  the  goods  have  been  in  good  faith  sold 
or  disposed  of,  before  demand  or  suit  brought;  or,  when  the 
property  has  been  destroyed;  or,  an  animal  has  died;  in  such 
case  some  other  action  than  replevin  must  be  pursued. ^  The 
gist  of  the  action  being  the  wrongful  detention, ^  it  lies  for 
goods  wrongfully  detained  though  tlie  taking  was  rightful;* 
but  does  not  lie,  unless  there  is  a  wrongful  detention  at  the 
time  the  suit  is  brought. ^  In  '^ew  York,  a  statutory  provi- 
sion allows  the  arrest  of  the  defendant  whenever  it  is  shown 
that  he  has  concealed,  removed  or  disposed  of  the  property  to 
avoid  the  writ,  or  deprive  the  plaintiff  of  the  benefit  of  it;^ 
and  the  courts  hold,  that  in  such  cases,  that  the  action  may  be 
prosecuted  where  the  defendant  has  not  the  possession  of  the 
goods,  having  parted  with  them  for  the  purpose  of  avoiding 

Miss.  760;  Burton  v.  Brashear,  3  A.  K.  Marsh,  (Ky.)  277;  Howe  v.  Shaw, 
56  Me.  291 ;  Grace  v.  Mitcliell,  31  "Wis.  536;  Baer  v.  Martin,  2  Carter,  (Ind.) 
229 ;  Myers  v.  Credle,  63  N.  C.  505. 

1  Savage  v.  Perkins,  11  How.  Pr.  Rep.  (N.  Y.)  17;  Paul  v.  Luttrell,  1  Col. 
317. 

«  Meriden  v.  Wheldon.  31  Conn.  118;  Lindsay  -p.  Perry,  1  Ala.  (n.  s.)  204; 
Eichardson  v.  Reed,  4  Grey,  442;  Coffin  v.  Gephart,  18  Iowa,  257;  Moore 
V.  Kepner,  7  Neb.  294. 

3  Haggard  v.  Wallen,  6  Neb.  272;  Mercer  v.  James,  6  Neb.  406. 

^Esson  V.  Tarbell,  9  Cush.  407;  Waterman  v.  Matteson,  4  R.  I.  539; 
Dimond  v.  Downing,  2  Wis.  498. 

6  Savage  v.  Perkins,  11  How.  Pr.  17;  Hayward  v.  Seaward,  1  Moore  & 
Scott,  459. 

6  Watson  V.  McGuire,  33  How.  Pr.  Rep.  87.  See  Barnett  v.  Selling,  70 
N.  Y.  492. 


WKIT   LIES   ONLY   FOR   PROPEETY   IN    EXISTENCE.  TO 

the  writ;i  but  as  we  shall  see,  this  ruling  does  not  depend 
entirely  upon  the  statute,  but  applies  independent  of  the  stat- 
ute in  many  cases  where  the  defendant  has  put  the  property 
out  of  his  hands  to  avoid  the  writ. 

§  136.  The  writ  lies  only  for  property  in  existence.  Tlie 
property  must  also  be  in  being,  of  tangible  or  appreciable  form, 
subject  to  manual  delivery,  thus  for  the  young  which  animals 
are  expected  to  produce,  replevin  is  not  the  remtdy.^  When 
A.  agreed  that  his  horse  should  serve  the  mare  of  B.  upon  con- 
dition that  the  produce  should  belong  to  C.  Held,  that  C. 
took  a  sufficient  title  to  sustain  trover,  but  could  not  have 
replevin  before  the  colt  should  be  foaled.^  Neither  will" the 
action  lie  for  property  destroyed,  or  for  a  slave  who  died 
before  suit  commenced;*  but  the  plaintiff  may  have  judgment 
for  the  young  of  animals  recovered  by  him,  notwithstanding 
they  may  have  been  born  after  the  suit  was  begun. ^ 

§  137.  Proof  that  the  defendant  was  about  to  take  posses- 
sion will  not  sustain  replevin  As  has  been  stated,  the  action 
is  in  the  nature  of  a  proceeding  in  rem  for  the  delivery  of  the 
identical  goods,  and  in  such  actions  the  defendant  must  have 
the  actual  or  constructive  possession  of  the  property  sued  for 
at  the  time  suit  is  brought,  as  the  action  lies  only  against  one 
who  has  such  possession  and  can  deliver  the  goods  sued  for.** 
Proof,  therefore,  that  the  defendants  were  about  to  take  pos- 
session, but  had  not  actually  done  so,  will  not  sustain  the 
action;'  nor  will  proof  that  the  defendant  intended  or  agreed 
to  convert  the  goods  to  his  own  use,  amount  to  a  conversion, 
without  some  actual  interference  with  the  property, ^ 

'  Ellis  v.  Lersner,  48  Barb.  530;  Nichols  v.  Michael,  23  N.  Y.  264. 

'  LinJsay  v   Perry,  1  Ala.  203;  Chissom  v.  Hawkins,  11  Ind.  318. 

2  McCarty  v.  Blevins,  5  Yerger,  (Tenn.)  196. 

*  Burr  0.  Dougherty,  21  Ark.  559;  Caldwell  v.  Fenwick,  2  Dana,  (Ky.)  333. 

»  Buckley  v.  Buckley,  12  Nev.  423;  §  500  post.. 

»  Latiirop  V.  Cook,  2  iSliep.  (Me.*  414;  Sawyer  v.  Huff,  12  Sliep.  (Me )  4C4; 
Small  V.  Hutchins,  1  Appl.  (li)  ]\Ie.)  255;  Learned  v.  Bryant,  13  .Alass.  224; 
McCormick  v.  McCormick,  40  Miss.  761-  Gaffi;.  Hiirdlno:,  4S  111.  143.  See 
Same  v.  Same,  66  111.  62. 

■>  Whitwell  V.  Wells,  k!4  Pick.  29. 

8  Herron  e.  Hughes,  25  Cal.  555.  See  Squires  v.  Smith,  10  B.  Mon. 
(Ky.)  34. 


80  POSSESSION    BY    THE   DEFENDANT. 

§  138.  Neglect  to  deliver;  when  not  a  conversion.  When 
at  tlie  time  of  the  service,  the  defendant  was  not  in  possession 
of  the  property,  and  denied  having  anything  to  do  with  it, 
but  pointed  out  his  son  in  whose  house  he  lodged,  who  was 
then  present  and  had  possession;  held^  the  action  could  not 
be  sustained  against  the  father,  even  though  he  advised  his 
son  not  to  deliver  it.^ 

§  139.  The  same.  When  the  plaintiif  and  his  wife  occu- 
pied separate  parts  of  the  wife's  house,  pending  a  suit  for 
divorce,  after  the  divorce  the  plaintiff  suffered  liis  goods  to 
I'emain  in  the  house;  afterwards,  when  plaintiff  was  out,  tlie 
defe'hdant  fastened  up  the  doors  and  windows.  The  plaintiff 
demanded  to  be  let  into  the  house,  but  did  not  demand  the 
goods,  the  defendant  offered  to  put  out  his  property,  but  the 
plaintiff  forbid  her  to  do  so,  and  brought  replevin.  Held, 
that  the  defendant  was  not  gnilty  of  detaining;  she  excluded 
the  plaintiff  from  her  building  as  she  had  a  right  to  do,  but 
there  was  nothing  to  show  taking  or  detention  of  the  goods. ^ 
And  the  rule  appears  general,  that  mere  neglect  to  deliver 
goods  unless  they  are  actually  in  the  defendant's  possession  at 
the  time  of  demand,  will  not  amount  to  a  conversion. ^ 

§  140.  Taking  under  a  license  not  a  conversion.  When 
the  taking  was  made  under  an  implied  license  to  the  taker,  no 
conversion  results.  When  H.  hired  a  buggy  and  injured  it, 
it  was  agreed  that  he  should  pay  for  the  repairs;  plaintiff 
took  it  to  a  shop  for  repair;  next  day,  H.  went  to  the  shop 
and  the  buggy  not  being  repaired  or  in  process  of  repair,  he 
took  it  to  another  shop  and  had  it  repaired;  he  did  not  take 
or  obtain  it  for  his  own  use  or  the  use  of  anyone  else,  it  was 
not  injured  in  his  possession,  and  in  fact,  no  element  of  con- 
version appeared  in  any  act  of  the  defendant.^  Such  a  taking 
is  looked  upon  as  by  the  owner's  consent,  rather  than  wrong- 

'  Johnson  Admr.  ■».  Garlick,  25  Wis.  705;  Timp  v.  Dockliam,  32  Wis. 
151 ;  Grace  «.  Mitchell,  31  Wis.  539. 

2  Bent  ».  Bent,  44  Vt.  634. 

8  Whitney  ij.  Slauson,  30  Barb.  276;  Hawkins  ».  Hoffman,  6  Hill,  586; 
Hill  V.  Covell,  1  Comst.  522;  Hall  v.  Robinson,  2  Comst.  293;  Miller  v.  111. 
Cent  R.  R.  Co.,  24  Barb.  313. 

*  Eldridge  v.  Adams,  54  Barb.  417 


POSSESSION    BY   AN   OFFICER.  81 

fill,  but  if  the  defendant  while  so  in  the  actual  possession  of 
the  goods  had  refused  to  deliver  on  demand,  or  done  any  act 
inconsistent  with  the  owner's  right,  he  would  have  been  liable. 

§  141 .  A  firm  may  be  responsible  for  the  act  of  one  member. 
A  firm  may  be  responsible  in  this  action  for  the  taking  and 
detention  by  one  member  when  he  acts  for  and  on  the  part  of 
all,  though  if  his  wrongful  act  was  witliout  the  consent  of  the 
others,  he  would  alone  be  liable.^ 

§  142.  Taking  by  an  officer ;  when  sufficient  to  render  him 
liable  in  this  action.  Where  the  defendant  was  an  officer  who 
had  levied  on  property,  but  did  not  remove  it,  the  defendant 
in  the  execution  who  still  retained  the  goods,  will  not  be  per- 
mitted to  sustain  replevin  against  the  ofiicer,  as  the  possession 
was  still  in  himself;^  but  when  an  olficer  levies  on  goods,  and 
takes  an  inventory,  and  directs  a  receiptor  to  prevent  their  re- 
moval, he  has  a  sufiicient  possession  to  enable  the  owner  to 
sustain  replevin. ^  And  such  a  taking  is  sufiicient  ground  on 
which  to  base  an  action  against  the  officer. 

§  143.  Possession  by  an  officer  not  possession  of  the  cred- 
itor in  the  writ.  The  actual  possession  of  an  ofiicer  who  has 
seized  goods  on  process  in  his  hands,  is  not  the  constructive 
possession  of  the  creditor  in  the  writ.^  An  attachment  cred- 
itor, therefore,  is  not  jointly  liable  with  the  officer.  He  has 
no  property  in  the  goods,  entire,  general  or  special,  and  no 
possession  or  right  of  possession. ^  But  where  the  attaching 
creditor  claimed  to  be  the  owner  of  the  property,  and  attached 
the  goods  to  get  possession  of  them,  and  had  them  in  posses- 

>  HowG  V.  Shaw,  56  Me.  291. 

«  Hickey  v.  Hinsdale,  12  Mich.  100.  See  Mitchell  v.  Roberts,  50  N.  H. 
486;  Ramsdell  v.  Baswell,  54  Me.  548,  overruling  Sayward  v.  Warren,  27 
Me.  453 ;  English  v.  Dalbrow,  Miles  (Pa.)  160 ;  Wood  v.  Orser,  25  N.  Y.  355 ; 
Angel  V.  Keith,  24  Vt.  373. 

3  Fonda  v.  Van  Home,  15  Wend.  683. 

4  Gallagher  v.  Bishop,  15  Wis.  282;  Booth  v.  Ableman,  16  Wis.  460; 
Ilsley  V.  Stubbs,  5  Mass.  283;  Smith  v.  Orser,  43  Barb.  187;  Grace  v. 
Mitchell,  31  Wis.  533. 

8  Douglass  V.  Gardner,  63  Me.  462 ;  Richardson  v.  Reed,  4  Grey,  442 ;  Ladd 
a  North,  2  Mass.  516;  Grace  v.  Mitchell,  31  Wis.  533;  Small  v.  Hutcliins. 
19  Me.  255 ;  Mitchell  v.  Roberts,  50  N.  H.  486.  Contra,  see  Hathaway  v.  St. 
-john,  20  Conn.  346 ;  Bowen  v.  Hutchins,  18  Conn.  550. 

6     . 


82  POSSESSION   BY   THE   DEFENDANT. 

sion,  lie  was  liable  in  replevin  as  well  as  in  trespass  oi 
trover;^  and  where  the  plaintiff  in  an  execution  directed  the 
sherift'  to  levy  on  certain  articles  belonging  to  another  party, 
the  court  considered  the  officer  as  tlie  servant  or  agent  of  the 
plaintiff  in  execution,  and  sustained  replevin  against  him,  not- 
withstanding he  was  never  in  actual  possession  of  the  property,^ 
Where  an  officer  has  levied  on  bulky  articles,  and  endorses  his 
levy  on  his  process,  and  refuses  to  give  them  up,  but  asserts 
his  right,  he  has  such  a  possession  as  will  justify  replevin 
against  him,  there  being  no  actual  possession  and  control  of 
the  goods  in  any  other  person.  ^ 

§  144.  Servant  not  usually  liable  for  holding  his  master's 
goods.  As  a  general  rule,  the  posses;  ion  of  the  defendant  must 
be  a  possession  under  some  claim  of  right  in  himself.  A  ser- 
vant is  not,  as  a  general  thing,  a  proper  defendant  in  replevin, 
when  he  only  holds  the  goods  as  his  master's,  unless  he  is 
guilty  of  some  wrongful  act.*  So,  where  a  servant  refuses  to 
deliver  goods  entrusted  to  him  by  his  master,  without  his  mas- 
ter's order,  the  servant  is  not  personally  liable  in  replevin,  the 
master  being  the  proper  defendant,^  the  possession  being  the 
possession  of  the  master.  So,  in  trover  for  a  note,  the  defend- 
ant claimed  to  be  agent  for  his  wife,  and  the  possession  was 
regarded  as  in  the  wife.^  But  the  agent  of  an  express  com- 
pany may  be  sued  if  he  refuse  to  deliver  goods  after  payment 
or  tender  of  legal  charges.''^ 

§  145.  Where  defendant  has  put  the  goods  out  of  his  pos- 
session. There  are  cases  which  hold  that  the  action  may, 
under  certain  circumstances,  be  brought  against  a  defendant 
after  he  has  parted  M^ith  the  possession  of  the  goods;  thus, 
when  the  defendant  has  let  the  goods  for  hire,  and  it  appears 

1  Tripp  V.  Leland,  42  Vt.  488. 

«  Allen  V.  Crary,  10  Wend,  349. 

3  HfCch  V.  Fowler,  28  Mich.  212. 

*  Bennett  v.  Ives,  30  Conn.  329;  Owen  v.  Gooch,  2  Esp.  5G7. 

5  Mires  v.  Solebay,  2  Mod.  242;  Mount  v.  Derick.  5  Hill.  45G;  Storm  o. 
Livingston,  6  Johns.  44;  Alexander  v.  Southcy,  5  Barn.  &  Aid.  247. 

«  Hunt  V.  Kane,  40  Barb.  G;J8.  See  Matteawan  Co,  v.  Bentley,  13  Barb. 
643. 

'  Eveleth  v.  Blossom,  54  Me.  447. 


OUT   OF    officer's   POWER    TO   EXECUTE   WRIT.  83 

he  can  resume  tliem  at  pleasure,  i  Also,  where  the  defendant 
has  lately  had  possession  of  the  goods,  and  has  fraudulently 
made  away  with  them,  for  the  purpose  of  defeating  the  action,  it 
may  sometimes  be  sustained. 2  "Where  defendant  was  charged 
with  fraudulently  obtaining  possession  of  plaintiff's  property, 
and  consigning  it  to  his  uncle  in  London,  and  that  he  had 
drawn  drafts  on  the  bill  of  lading,  payable  when  it  should 
arrive,  the  plaintiff  might  sustain  action.^  It  will  be  seen 
that  it  is  not  absolutely  necessary  to  sustain  the  action,  that 
tlie  officer  be  able  to  find  and  deliver  the  goods.  Exceptions  to 
the  general  rule  arise  in  many  cases. 

§  146.  Or  put  it  out  of  the  oflacer's  power  to  execute  the 
writ.  When  the  defendant  puts  it  out  of  the  power  of  the  officer 
to  proceed  and  execute  the  writ,  the  plaintifl  may  be  allowed  to 
proceed  with  the  case  and  recover  the  full  value  of  the  goods, 
with  damages  for  the  detention.*  Where  the  writ  was  for 
rails,  and  the  defendant  took  part  of  them  and  built  them  into 
a  fence,  it  was  admitted  the  sheriff  could  not  take  them;  but 
the  plaintiff  was  permitted  to  recover  damages  to  the  full  value. 
To  permit  the  defendant  so  to  take  advantage  of  his  own  wrong 

'  Gaines  v.  Harvin,  19  Ala.  491;  Bradley  v.  Gamelle,  7  Minn.  331;  Harris 
V.  Hill  man,  26  Ala.  383. 

•^  Drake  v.  Wakefield,  11  How.  Pr.  Rep.  107;  Nichols  v.  Michael,  23  N. 
Y.  264;  Ellis  v.  Lersner,  48  Barb.  539;  Dunham  v.  Troy  Union  R.  R.  Co., 
3  Keyes,  (N.  Y.)  543:  Savage  v.  Perkins,  11  How.  Pr.  Rep.  17. 

2  Ellis  V.  Lersner,  48  Barb.  539.  See,  also.  Burton  v.  Brashear,  3  A.  E. 
Marsh,  (Ky.)  278;  Powers  v.  Bassford,  19  How.  Pr.  309;  Garth  v.  Howard, 
5  Car.  &  P.  852;  Ford  v.  Caldwell,  3  Riley,  (S.C.)  277,  3  Hill  &  New  Ed.,  3 
Hill,  *238;  Anderson  v.  Passman,  7  C.  &  P.  193;  Harris  v.  Hillman,  26  Ala. 
380 ;  Clements  v.  Flight,  16  Exch.  42 ;  Walker  v.  Fenner,  20  Ala.  198 ;  Brock- 
way  0.  Burnap,  16  Barb.  309,  overruling  S.  C.  (12  Barb,)  347;  Southcote  v. 
Bennett,  Cro.  Eliz.  815;  Jones  v.  Dowle,  9  M.  &  W.  19;  Garth  v.  Howard,  5 
C.  &  P.  346 ;  Anderson  v.  Passman,  7  C.  &  Payne,  193 ;  8  B.  &  Aid.  703. 

4  Pomeroy  v.  Trimper,  8  Allen,  403 ;  Bower  v.  Tallman,  5  Watts  &  S.  561 ; 
Baldwin  v.  Cash,  7  Watts  &  S.  426.  See  able  dissenting  opinion  in  Rams- 
dell  v.  Buswell,  54  Me.  548;  Ross  v.  Cassidy,  27-37  How.  Pr.  416.  In  New 
York,  when  the  defendant  had  put  the  property  out  of  his  hands,  for  the 
purpose  of  preventing  the  writ,  the  statute  formerly  allowed  an  arrest. 
Roberts  v.  Randel,3  Sandf.  (N.  Y.)  707.  Consult  Van  Neste  v.  Couover,  20 
Barb.  547;  Ward  v.  Woodburn,  27  Barb.  346;  Nichols  v.  Michael.  23  N.  Y. 
264;  United  States  v.  Buchanan,  8  How.  83;  Brockway  v,  Burnap,  16  Barb. 
309. 


84  POSSESSION    BY    THE    DEFENDANT. 

is  contrary  to  all  the  principles  of  the  law.i  When  the  officer 
caused  the  value  of  the  property  to  be  ascertained,  and  had 
taken  security  recjuired  by  law,  and  had  taken  the  property 
into  his  custody,  when  it  was  forcibly  taken  from  hira  by  the 
defendant,  the  plaintiff  may  j^roceed  and  recover  the  value  as 
damages. 

§  147.  Fraudulent  transfers  of  goods.  When  one  obtains 
goods  by  fraud,  and  had  transferred  them  to  a  trustee  for  his 
creditors,  a  joint  action  lies  against  both.^  Where  A.,  with- 
out any  authority,  pledges  the  property  of  B,  to  C,  action  of 
detinue  may  be  against  both.^ 

§  148.  Clothing  worn  on  the  person  not  subject  to  the  writ. 
While  the  property  must  be  in  the  defendant's  possession,  yet 
it  is  not  all  property  in  his  possession  which  is  liable  to  be 
taken  on  a  writ  of  replevin.  Thus,  where  the  property  is  in 
actual  use  by  the  defendant,  or  worn  upon  his  person,  as  a 
jewel  or  watch,  even  though  worn  for  the  purpose  of  evading 
a  seizure.  The  officers  cannot  take  it  so  long  as  it  continues 
to  be  worn  on  the  person  of  the  defendant.  A  man's  clothes 
cannot  lawfully  be  taken  from  his  back,  nor  his  watch  from  his 
pocket  or  his  hand,  by  an  officer  upon  a  writ  of  replevin. * 

§  149.  Possession  after  dismissal  of  an  action  of  replevin. 
When  the  action  of  replevin  was  dismissed  without  an  order 
for  a  return,  the  defendant  is  not  liable  to  a  second  action  for 
the  same  property,  unless  it  appears  that  the  goods  have  come 
into  his  possession,  and  that  he  has  asserted  a  right  or  done 
some  act  inconsistent  with  the  plaintiff's  claim.  The  return 
of  the  property  to  an  inn-keeper,  from  whose  house  it  was 
taken,  is  not  of  itself  a  restoration  to  the  defendant,  unless  he 
authorized  or  adopted  the  act  as  his  own.  The  defendant  in 
the  first  action  made  no  claim  to  the  property,  and  this  would 

'  Bower  v.  Tallman.  5  W.  &  S.  (Pa.)  561.    See  Snow  v.  Roy,  22  Wend.  604. 

« Nichols  V.  Michael,  23  N.  Y.  209. 

8  Garth  v.  Howard,  5  Car.  &  P.  346. 

*  Maxham  v.  Day.  16  Gray,  (Mass )  214;  Gorton  v.  Palkner,  4  D.  &  East. 
5G5  and  305;  Storey  v.  Robinson,  6  Term.  R.  139  and  73;  Mack  v.  Parks,  8 
Gray,  (Mass.)  517;  Sunbolf  ?).  Alford,  3  Mees.  &  W  218.  As  to  whether  the 
sheriff  can  break  and  enter  a  dwelling  house,  see  post,  power  and  duty  of 
sheriff. 


ACTION    PERMITTED   IN    SOME   STATES.  85 

seem  to  indicate  that  he  did  not  intend  further  to  assert  any 
claim  to  it.^ 

§  150.  Defendant  acquiring  possession  with  plaintiff's 
consent.  Wliere  the  defendant  sells,  or  otherwise  disposes  of 
the  goods,  the  owner  standing  by  and  making  no  objections, 
when  he  can,  with  propriety,  speak,  he  cannot  afterward 
sustain  replevin  against  purchasers. ^  This  rule  linds  numer- 
ous illustrations  in  different  cases,  but  the  general  principle  is 
the  same  in  all  —  that  when  one  stands  by  in  silence  and 
permits  another  to  act  upon  an  erroneous  state  of  facts,  to  the 
injury  of  the  person  whom  he  suffered  to  remain  in  error,  he 
is  estopped  from  setting  up  his  rights. ^ 

§  151 .  The  action  permitted  in  some  States  without  delivery 
of  the  goods.  In  many  of  the  States  actions  for  the  recovery 
of  goods  in  specie  may  be  prosecuted  without  asking  a  delivery 
of  the  goods  until  after  the  final  judgment  of  the  court  on  the 
merits  of  the  controversy.  In  such  case,  the  reason  for  the 
rule  which  forbids  the  action  against  any  one  not  in  pos- 
session fails;  and,  while  adjudications  directly  on  this  question 
are  not  numerous,  no  reasons  exist  why,  in  such,  the  plaintiii 
may  not  have  an  alternative  judgment,  for  the  goods  or  their 
value,  against  a  defendant,  after  he  has  parted  with  the 
possession,  as  well  as  before. 

'  Way  V.  Barnard,  R6  Vt.  370. 

2  Skinner  v.  Stouse,  4  Mo.  93. 

8  Thompson  v.  Blancliard,  4  N.  T.  303;  Erie  Savings  Bank  v.  Roop,  48  N. 
Y.  293;  Brewster  v.  Baker,  16  Barb.  613;  Otis  v.  Sill,  8  Barb.  103;  Hope  v. 
Lawrence,  50  Barb.  258. 


86 


JOINT   OWNERS. 


CHAPTER  YI. 


JOINT  OWNERS. 


Section. 

One  joint  tenant  cannot  main- 
tain replevin  against  his  co- 
tenant      153 

Tiie  same.  Appearing  in  the 
writ,  or  pleaded  by  the  de- 
fendant     153 

Replevin  does  not  lie  for  an  un- 
divided interest       .        .        .  154 

Owners  of  separate  interests 
cannot  join,  but  joint  own- 
ers must 155 

Action  by  one  of  two  owners 
does  not  lie  against  a  stranger 
for  the  joint  property     .        .  156 

The  same.  Illustrations  of  the 
rule 157 

Landlord  reserving  a  share  of 
tlie  crop  cannot  sustain  re- 
plevin until  his  share  is  set 
apart 158 


Section. 

Death  of  one  partner,  who  en- 
titled to  the  partnership  prop- 
erty  159 

The  same.  Joint  tenancy,  how 
pleaded 160 

By  agreement  of  all  joint  own- 
ers, the  right  of  possession 
may  be  in  one         .        .        .  161 

The  severance  of  the  joint  ten- 
ancy by  agreement         .        .  162 

Severance  by  the  act  of  one 
joint  tenant     ....  163 

Purchaser  of  a  joint  tenant's 
interest  at  sheriff's  sale        .  164 

Sale  by  one  partner  of  his  in- 
terest in  goods        .        •        .  165 

An  officer  with  process  against 
one  member  of  a  firm  may 
seize  all  the  partnership 
goods 166 

The  same 167 


§  152.  One  joint  tenant  cannot  sustain  replevin  against 
his  co-tenant.  One  joint  tenant  cannot  sustain  replevin 
against  his  co-tenant  for  the  possession  of  tlie  chattels  owned 
by  them  in  common,  for  the  reason  that,  unless  there  be  some 
agreement  to  the  contrary,  one  has  as  much  right  to  the 
possession  of  the  joint  property  as  the  other. i 

»  Prentice  v.  Ladd,  13  Conn.  331;  Russel  v.  Allen,  13  N.Y.  173;  Wilson 
V.  Reed,  3  Johns.  177;  Ellis  v.  Culver,  1  Har.  (Del.)  76;  Barnes  v.  Bartlett. 
15  Pick.  71;  Hardy?).  Sprowle,  33  Me.  333;  Wills  v.  Noyes,  13  Pick.  334; 
Eakin  v.  Eakin,  63  111.  160.  But  if  one  tenant  in  common  destroys  the 
thing,  trover  will  lie.  Wilson  v.  Reed,  3  Jolins.  177;  Co.  Litt.  200  a.  Tea- 
ants  in  common  are  not  like  partners.    One  partner  may  sell  the  firm 


APPEARING   IN   THE   WRIT.  87 

§  153,  The  same.  Appearing  in  the  writ,  or  pleaded  by 
the  defendant.  If  the  fact  of  joint  tenancy  be  shown  by  the 
plaintiff  in  liis  pleadings,  or  in  his  writ,  the  suit  must  fail. 
The  court  will  usually  in  such  case  direct  that  the  writ 
abate,  1  and  the  defendant  may  have  a  return  of  the  goods. 
But  when  the  joint  tenancy  is  pleaded  by  defendant,  it  is 
a  matter  of  defense,  and  is  the  subject  of  proof.  So  when  it 
appears  during  the  trial  that  the  parties  own  the  property 
jointly,  or  are  partners,  the  court  will  not  for  that  reason  dis- 
miss .tlie  proceeding,  but  will  leave  it  to  the  jury  as  one  of  the 
issues  in  the  case,  and  will  direct  them,  in  case  they  find  a 
joint  tenancy,  that  the  verdict  must  be  found  for  the  de- 
fendant. 2 

property  without  being  liable  in  tort.  Fox  v.  Hanbury,  2  Cowp.  450.  But 
one  partner  cannot  sustain  replevin  against  his  partner  for  the  exclusive 
possession  of  the  firm  property.  Azel  v.  Betz,  2  E.  D.  Smith,  188;  Holton 
V.  Binns,  40  Miss.  492;  Noble  v.  Epperly,  6  Port.  (Ind.)  416;  Mills  v. 
Malott,  43  Ind.  252;  Rogers  v.  Arnold,  12  Wend.  30;  Eakin  v.  Eakin,  63  111. 
160;  Wetherell  v.  Spencer,  3  Mich.  123;  Hill  v.  Robinson,  16  Ark.  90; 
Hardy  v.  Sprowle,  82  Me.  322;  M'Elderry  v.  Flannagan,  1  Har.  &  G.  (Md.) 
308.  One  partner  cannot  maintain  replevin  against  the  other  for  firm 
goods,  and  defendant  may  have  return.  Reynolds  v.  McCormick,  62  111. 
415.  See  Chambers  v.  Hunt,  22  N.  J.  L.  554.  The  possession  of  one  tenant 
in  common  is  the  possession  of  all.  Walker  v.  Fenuer,  28  Ala.  373.  All 
the  plaintiffs  must  be  entitled  to  recover,  or  none  of  them  can.  lb.  By  the 
common  law,  if  a  woman  own  chattels  in  common  with  another,  and 
marry,  the  tenancy  in  common  ceases,  and  the  husband  becomes  tenant  in 
common  with  the  others.  Walker  v.  Fenner,  28  Ala.  373.  Husband  and 
wife  could  not  be  tenants  in  common,  as  her  chattels  are  absolutely  his. 
lb.  If  one  tenant  in  common  take  all  the  goods,  by  common  law,  the  other 
has  no  remedy,  but  might  retake  the  goods,  if  he  coukl.  Co.  Litt.  200  a; 
Dixon  V.  Thatcher,  14  Ark.  145 ;  M'Elderry  «.  Flannagan,  1  H.  &  Gill.  (Md.) 
808;  Daniels  v.  Brown,  34  N.  H.  454.  In  some  of  the  States,  statutory 
enactments  have  changed  or  modified  this  rule;  as,  in  California,  a  statute 
provided  tliat  "joint  tenants"  may  jointly  or  severally  bring  or  defend 
any  civil  action  for  the  enforcement  or  protection  of  the  rights  of  such 
party.  This  statute  was  construed,  in  Schwartz  v.  Skinner,  47  Cal.  6, 
which  was  a  case  for  the  undivided  part  of  the  furniture  of  a  hotel.  The 
defendant  in  possession  refused  to  permit  the  plaintiff  to  take  or  share 
possession,  and  refused  to  pay  any  rent.  The  court  directed  a  judgment 
for  the  plaintiff.  The  case  of  Schwartz  v.  Skinner  seems  to  stand  alone ; 
but  see  Bostick  v.  Brittain,  25  Ark.  482;  Hewlett  v.  Owens,  50  Cal.  475. 

'  Hart  V.  Fitzgerald,  2  Mass.  509. 

« Belcher  v.  Van  Duzen,  37  111.  282.    Consult,  also,  Hunt  v.  Chambers,  1 


88  JOINT   OWNEES. 

§  154.  Replevin  does  not  lie  for  an  undivided  interest. 
Eeplevin  does  not  lie  for  an  undivided  interest  in  a  chattel,  as 
an  undivided  part  is  not  susceptible  of  delivery  without  the 
whole.  1  The  plaintiff  must  have  an  entire  interest,  or  a  right 
to  the  entire  and  exclusive  possession,  or  his  action  must  fail.^ 
When  a  party  claims  only  a  lien  unaccompanied  by  a  right  to 
possession,  iie  cannot  maintain  replevin  to  obtain  possession 
of  the  property  in  order  to  enforce  his  lien.^ 

§  155.  Owners  of  separate  interests  cannot  join,  but  joint 
owners  must.  Where  several  plaintiffs  claim  several  and  dis- 
tinct rights  in  the  property  they  cannot  join  in  an  action  for 
it.'*  But  where  the  goods  are  the  joint  property  of  several, 
all  must  join  as  plaintiffs  or  replevin  will  fail.  One  juint 
owner  cannot  sue  alone  and  recover  possession  of  the  goods, 
even  from  a  third  party.  ^ 

§  156.  Action  by  one  of  two  joint  owners  does  not  lie 
against  a  stranger  for  the  joint  property.  It  does  not  admit 
of  dispute  that  one  tenant  in  common  cannot  maintain  replevin 
against  his  co-tenant.  But  the  question  has  been  suggested  as 
to  whether  he  could  maintain  the  action  against  a  stranger 
who  wrongfully  took  the  possession.  There  is  no  doubt  that 
the  part  owner  of  chattel  in  his  possession  may  support  tho 
action  against  one  who,  without   right,  should   forcibly  dis- 

Zab.  (N.  J.)  620;  Chambers  v.  Hunt,  2  Zab.  (22  N.  J.)  554;  D'Wolf  v.  Harris, 
4  Mason  C.  C.  515;  Holton  v.  Binns,  40  Miss.  491. 

'  Kindy  t.  Green,  32  Midi.  310;  Price  v.  Talley's  Admr.,  18  Ala.  21 ;  Par- 
sons V.  Boyd,  20  Ala.  112;  Kimball  v.  Thompson,  4  Cash.  (Mass.)  447;  Hart 
v.  Fitzs^erald,  2  Mass.  509. 

2  Frierson  v.  Frierson,  21  Ala.  549;  Bell  v.  Hogan,  1  Stewart,  (Ala.)  536; 
Miller  v.  Eatman,  11  Ala.  G09. 

s  Otis  V.  Sill,  8  Bart.  102. 

4  Chambers  v.  Hunt,  18  N.  J.  L.  339;  Barry  ».  Rogers,  2  Bibb.  314;  Hinch- 
man  v.  Patterson,  H.  R.  R.  Co.,  17  N.  J.  Eq.  75;  O wings  «.  Owings,  1  Har, 
&  Gill.  (Md.)  484;  Glover  v.  Hunnewell,  6  Pick.  222;  Walker  v.  Fenner,  28 
Ala.  373. 

*  McArthur  v.  Lane,  15  Me.  245;  Reinheimer  v.  Hemingway,  35  Pa.  St. 
435;  Demott  v.  Hagerman,  8  Cow.  220;  Coryton  v.  Litliebye,  2  Saund.  116; 
Decker  v.  Livingston,  15  John.  479;  Portland  Bank  v.  Stubbs,  6  Mass.  422; 
D'Wolf  v.  Harris,  4  Mason  C.  C.  515;  Eakin  v.  Eakin,  63  111.  160;  Colton 
V.  Mott,  15  Wend.  619.  Consult  Gilmore  v.  Wilbur,  12  Pick.  120;  Picker- 
ing V.  Pickering,  11  N.  H.  141, 


ILLUSTBATIONS   OF    THE   EdLE.  89 

possess  him.  It  is  true,  also,  that  one  of  two  joint  tenants  is 
owner  of  the  half  of  the  whole,  and  as  against  all  but  his  co- 
tenant  would  seem  to  have  a  better  right  to  the  exclusive  pos- 
session than  any  stranger;  but  it  must  be  remembered  that 
his  right  extends  only  to  half,  and  not  to  the  whole,  and  that 
as  against  a  stranger  in  possession  he  has  no  greater  rights  to 
his  co-tenant's  interest  than  any  otlier  tliird  person.  There- 
fore, when  he  relies  on  his  title,  and  not  on  his  prior  posses- 
sion, liis  title  will  not  avail  in  action  against  a  stranger.  Tlie 
case  of  Schwartz  v.  Skinner,  47  Cal.  6,  and  the  dicta  in 
J) '  Wolf  V.  Harris^  4  Mason,  C.  C,  515,  may  be  quoted  against 
these  views;  but  the  former  was  decided  under  a  special  stat- 
ute, and  the  latter  is  mere  dicta,  and  the  entire  current  of 
authority  is  the  other  way.i 

§  157.  The  same;  illustrations  of  the  rule.  Where  a  land- 
lord agreed  to  receive  part  of  the  crop  for  his  rent,  to  be  har- 
vested and  delivered  to  him  in  the  crib,  it  was  levied  on  as  the 
propertv  of  the  tenant  while  in  the  field.  Held,  the  landlord 
could  not  sustain  replevin  for  his  share  prior  to  a  division. ^ 
So  where  a  party  purchased  land,  and  being  unable  to  pay  for 
it  agreed  to  deliver  a  part  of  the  crop  for  the  use,  but  after- 
wards refused  to  do  so,  and  was  hauling  the  grain  to  tlie  mar- 
ket and  storing  it  in  his  own  name  and  the  names  of  otlier 
parties;  the  landlord  brought  a  bill  to  restrain  all  the  par- 
ties, which  was  held  the  proper  remedy  in  such  case.  The 
plaintiflf  could  not  maintain  replevin  for  an  undivided  portion 
of  the  corn;  his  only  remedy  was  held  by  bill  in  equity. ^ 

1  Chambers  v.  Hunt,  18  N.  J.  L.  339;  Hunt  «.  Cliambers,  1  Zab.  (N.  J.) 
623;  Barnes  v.  Barlett,  15  Pick.  75;  M'Elderyy.  Flannagan,  1  Har.  &  G. 
(Mel.)  308;  Russell  v.  Allen,  3  Kern,  (N.  Y.)  178;  Wilson  v.  Gray,  8  Watts, 
35;  Deacon  v.  Powers,  57  Ind.  489.  Where  the  property'  is  adraitled  to  l)o 
in  the  plaintiff  by  the  pleading,  and  the  joint  ownership  is  not  made  a 
ground  of  defense,  the  rule  cannot  be  enforced  —  Tell  v.  Beyer,  38  N.  Y. 
161  —  and  when  one  joint  tenant  sells  a  stranger  the  right  to  cut  timber  off 
the  common  property,  the  other  cannot  succeed  in  replevin  for  the  timber 
after  it  is  cut.    Alford  v.  Bradeen,  1  Nev.  228. 

2  Sargent  v.  Courrier,  66  111.  245.  The  same  rule  was  applied  in  Indiana. 
Lacy  ®.  Weaver,  49  Ind.  376;  Williams  v.  Smith,  7  Ind.  559;  Liudley  ©. 
Kelley,  42  Ind.  294. 

*  Parker  v.  Garrison,  61  111.  251. 


90  JOINT    OWNERS. 

§158.  Landlord  reserving  a  share  of  the  crop  cannot  sus- 
tain replevin  until  his  share  is  set  apart.  Where  a  tenant 
agrees  to  deliver  a  share  of  the  crop  for  his  rent  the  landlord 
cannot  sustain  replevin  for  anj  portion  until  his  share  has 
been  ascertained  and  set  apart  or  separated  from  the  tenant's.^ 
But  when  the  grain  was  harvested  and  put  in  the  barn,  and 
the  tenant  divided  and  took  away  his  share,  leaving  the  land- 
lord's, it  was  held  a  sufficient  division  of  the  crops  to  enable 
the  latter  to  maintain  replevin  for  his  share. ^ 

§  159.  Death  of  one  partner,  who  entitled  to  the  partner- 
ship property.  On  the  death  of  one  of  two  partners  the 
partnership  is  dissolved.  In  some  of  the  States  the  survivor 
is  entitled  to  retain  possession  of  the  partnership  effects;  and 
in  such  case,  upon  conforming  to  sucli  regulations  as  the  stat- 
utes provide  concerning  an  account,  he  is  entitled  to  the  pos- 
session of  all  the  chattels  belonging  to  the  firm,  and  may  bring 
replevin  for  them.  In  other  States  the  property  of  the  de- 
ceased member  of  a  firm  goes  to  his  administrator, ^  and  in 
such  case  the  surviving  partner  having  only  a  joint  interest 
cannot,  upon  that  title,  sustain  replevin. 

§  160.  The  same.  Joint  tenancy,  how  pleaded.  Where 
the  plaintiff  fails  to  establish  his  right  to  the  possession  exclu- 
sively in  himself,  he  cannot  succeed.  The  joint  tenancy  of 
others  may  be  pleaded  in  abatement  or  may  be  taken  advan- 
tage of  on  the  trial,  under  a  plea  in  bar  setting  up  that  fact.* 

§  161.  By  agreement  of  all  joint  owners,  the  right  to  pos- 
session may  be  in  one.  When  by  the  agreement  of  all  the 
joint  owners,  the  right  to  the  possession  is  vested  exclusively 
in  one  of  them,  he  may  replevy  with  success  even  against  his 

'  Lacy  V.  Weciver,  49  Ind.  373;  Williams  v.  Smith,?  Ind.  559;  Chissom  v. 
Hawkins,  11  Ind.  316;  Fowler  «.  Hawkins,  17  Ind.  211;  Sargent  «.  Cour- 
rier,  66  111.  245;  Alwood  v.  Ruckman,  31  111.  200;  Dixon  v.  Niccolls,39  111. 
373;  Daniels  v.  Brown.  34  N.  H.  454. 

2  Burns  v.  Cooper,  31  Pa.  St.  429. 

8  Putnam  v.  Parker,  55  Me.  336. 

*  Reinlieimer  v.  Hemingway,  35  Pa.  St.  435;  Cullum  v.  Bevans,  6  Har. 
&  J.  (Md.)  469;  Harrison  v.  M'Intosh,  1  John.  380;  Chamhers  v.  Hunt,  3 
Har.  (18  N.  J.)  339;  Marsh  v.  Pier,  4  Rawle.  273.  Consult  D'Wolf  v. 
Harris,  4  Mason,  C.  C.  515 ;  Addison  v.  Overend,  6  Term.  R.  357,  766. 


SEVEKAITCE   OF   JOINT   TENANCY.  91 

co-tenants.i  "Where  the  property  was  the  equipment  of  a 
whaliiig  vessel,  and  tlie  master  had  the  exclusive  right  to  pos- 
session during  the  vojage,  but  after  the  return  the  general 
agent,  whose  right  and  duty  it  was,  under  the  contract  with 
all  the  owners,  to  take  charge  of  the  stores  and  dispose  of 
them,  had  the  right  to  possession,  the  latter  could  sustain 
replevin  against  anyone  who  should  interfere  with  his  posses- 
sion. ^  When  the  partnership  was  for  the  manufacture  of 
saddles,  and  one  partner  was  to  furnish  all  the  stock  and  the 
other  to  do  the  work,  the  partner  owjiing  the  stock  might 
replevy  it  from  an  officer  who  seized  it  on  process  against  tlie 
working  partner  before  any  work  was  done  on  it.^ 

§  162.  The  severance  of  the  joint  tenancy  by  agreement. 
The  severance  of  the  joint  tenancy  so  that  any  allotted  part  is 
set  off  to  either,  will  vest  in  him  such  a  title  as  will  enable 
him  to  sustain  replevin.  So  when  a  certain  part  of  a  cargo 
was  sold  by  consent  of  all  the  joint  tenants,  the  purchaser  was 
entitled  to  bring  replevin.* 

§  1G3.  Severance  by  the  act  of  one  joint  tenant.  The 
question  sometimes  arises  how  far  a  joint  tenancy  in  chattels 
can  be  severed  by  the  act  of  one  of  the  joint  owners.  In  a 
case  where  the  parties  owned  a  number  of  bags  of  cotfee,  not 
in  any  way  distinguished  by  marks  or  otherwise,  the  court 
said  each  one  might  have  taken  the  number  of  bags  which 
belonged  to  him  by  his  own  selection. ^  Where  the  property, 
consisting  of  grain,  raised  and  owned  jointly  by  two,  was  put 
into  two  cribs,  containing  equal  portions,  and  each  tenant  had 
a  key  to  one  of  the  cribs  with  the  right  to  feed  therefrom, 
there  was  not  such  a  separation  as  would  justify  an  action  on 
the  part  of  either  against  the  other,^  there  being  no  formal 
settlement  or  division.  But  where  a  party  purchases  goods 
in  bulk,  and  the  separation  depends  on  his  own  selection,  he 
may,  by  making  his  selection,  have  the  absolute  property  in 

I  Newton  v.  Gardner,  24  Wis.  232;  Corbett  v.  Lewis,  53  Pa.  St.  331. 
«  Rich  V.  Ryder,  105  Mass.  307. 
«  Boynton  v.  Page,  13  Weud.  425. 

*  Seldoa  v.  Hickock,  2  (Cain's  Ca.)  K  Y.  Term  R.  166. 

'  Gardner  v.  Dutch,  9  Mass.  427.    But,  see  editor's  note  to  this  case. 

•  Usry  V.  Rainwater,  40  Geo.  328. 


92  JOINT    OWNERS. 

the  part  so  selected  by  him.i  And  where  the  joint  property 
is  of  such  a  nature  that  one  may  take  his  share  without  in 
any  way  affecting  the  vahie  of  that  remaining,  cases  can  be 
found  which  say  he  may  do  so  without  consent  of  his  co- 
tenants.  ^ 

§  164.  Purchaser  of  a  joint  tenant's  interest  at  sheriff's 
sale.  "Where  the  interest  of  one  partner  is  sold  by  the  sheriff 
or  executor,  the  purchaser  becomes  a  quasi  tenant  in  common 
with  the  other  partners  so  far  as  to  entitle  him  to  an  account, 
but  not  to  the  exclusive  possession  of  any  part  of  the  prop- 
erty, and  replevin  by  such  purchaser  would  fail.^ 

§  165.  Sale  by  one  partner  of  his  interest  in  goods.  When 
one  partner  sells  his  interest  to  a  stranger,  the  purchaser  can- 
not sustain  replevin  on  the  refusal  of  the  other  partner  to 
admit  him  into  partnership.  The  sale  was  a  dissolution  of 
the  partnership,  and  the  continuing  member  was  not  compelled 
to  admit  the  purchaser  into  partnership  with  him.^ 

§  166  An  oflBcer  with  process  against  one  member  of  a  firm 
may  seize  all  the  partnership  goods.  The  rule  is  settled  that 
a  sheriff  with  process  against  one  member  of  a  firm,  may  levy 
upon  the  interest  of  that  member  in  partnership  property,  and 
may  sell  such  partner's  interest.^  Partnership  accounts  can- 
not be  settled  in  replevin. ^ 

§  167.  The  same.  Where  there  is  a  judgment  against  one 
partner  and  an  execution  issues  thereon,  the  officer  cannot 
seize  a  part  of  the  partnership  property;  he  must  seize  tlie 
entire  property  subject  to  levy  and  must  take  and  retain  the 
custody  thereof.  This  rule  seems  to  arise  from  the  necessities 
of  the  case.  The  officer  cannot  in  any  other  way  take  posses- 
sion of  the  property  subject  to  levy  and  sale.  And  while  the 
law  does  not  permit  the  sale  of  more  than  the  interest  of  the 
party  against  whom  the  execution  runs,  the  interests  of  the 
other  partner  must  so  far  yield  as  to  permit  the  possession 

>  Clark  V.  Griffiths,  24  N.  Y.  596;  McLaughlin  v.  Piatti,  27  Cal.  453. 

2  Forbes  v.  Shattuck,  22  Barb.  568;     Tripp  v.  Riley,  15  Barb.  334. 

3  Reinheiraer  «.  Hemingway,  35  Pa.  St.  435. 

4  Recce  v.  Hoyt,  4  Port.  (Ind.)  169. 

6  Waldman  v.  Broder,  10  Cal.  378;  Scrugham  v.  Carter,  13  Wend,  131. 
«  Chandler  v.  Lincoln,  52  111.  76. 


OFFTCEE    MAT    SEIZE    PAETNERSIIIP   GOODS.  93 

of  the  whole  long  enough  for  the  sale  of  the  nndivided  interest 
of  the  execution  debtor  who  is  pai't  owner,  and  the  other 
partner  cannot  sustain  replevin.  ^  The  interest  of  a  partner 
is  not  to  be  regarded  as  a  specific  share  in  the  goods  owned 
bj  them,  but  rather  an  interest  in  the  surplus  after  the  firm 
debts  are  paid.^ 

'  Branch  v.  Wiseman,  51  Ind.  1;  Ladd  v.  Billings,  15  Mass.  15;  Haydon 
■D.  Haydon,  1  Salk.  392;  Shaver  v.  While,  6  Munford,  (Va.)  110;  Mersereau 
■U.Norton,  15  Johns.  179;  Skipp  v.  Harwood,  2  Swanst.  586;  Johnson  v. 
Evans,  7  Man.  &  G.  240;  Whitney  v.  Ladd,  10  Vt.  165;  Remmingtou  v. 
Cady,  10  Conn.  44;  Lawrence  ■».  Burnham,  4  Nev.  361;  Rapp  v.  Vogel,  45 
Mo.  524;  GoU  V.  Hinton,  8  Abb.  Pr.  120;  James  v.  Stratton,  32  111.  202; 
White  V.  Jones,  38  111.  159;  Sanders  v.  Young,  31  Miss.  Ill;  Bernal  v. 
Hovious,  17  Cal.  541;  Hardy  v.  Donellan,  33  Ind.  501;  Moore  v.  Sample,  3 
Ala.  319.  See  Jones  v.  Thompson,  12  Cal.  191 ;  Walsli  v.  Adams,  3  Denio, 
125.  But,  compare  these  cases  with  Treadwell  «.  Brown,  43  N.  H.  290; 
Gibson  v.  Stevens,  7  N.  H.  353;  Morrison  v.  Blodgett.  8  N.  H.  238;  New- 
man  v.  Bean,  21  N.  H.  93;  Crockett  v.  Grain,  33  N.  H.  548. 

«  Garvin  v.  Paul,  47  N.  H.  163. 


94 


DESCRIPTION,    IDENTITY   OF    THE   GOODS. 


CHAPTER  YII. 


DESCKIPTION,  IDENTITY  OF  THE  GOODS. 


Section 

Plaintiff  must  prove  himself  to 
1)6  the  owner  of  the  identical 
property  sued  for    . 

The  writ  must  describe  the  prop- 
erty particularly 

The  property  must  be  capable 
of  delivery      .... 

Strictness  of  the  rule  in  regard 
to  description,  and  the  reason 
for  it 

The  same.  A  description  good 
in  trespass  or  trover  not  suffi- 
cient in  replevin     . 

The  same 

The  same 

When  the  sufficiency  of  descrip- 
tion is  a  question  for  the  jury  175 

Synonymous  descriptions.  Il- 
lustrations of,  and  when  al- 
lowable     

The  rule  as  to  certainty  of  de- 
scription  .... 

The  same 

Description  of  numerous  arti- 
cles, as  the  goods  in  a  store    . 

Descriptions  which  may  refer 
to  kind  or  quantity 

A  quantity  described  as  "  about " 
so  much 


168 


169 


170 


171 


172 
173 
174 


176 

177 
178 

179 

180 


181 


Section 

The  proof  as  to  description 
must  correspond  with  the 
writ 

Exact  quantity  need  not  be 
given  where  the  particular 
property  is  indicated 

Writ  of  return  and  verdict  may 
follow  declaration  as  to  de- 
scription   

When  objections  to  the  insuffi- 
ciency of  description  must  be 
taken 

Replevin  does  not  lie  for  goods 
sold,  unless  they  are  in  some 
way  separated  from  all  others 
or  identified    .... 

The  same 

The  same 

Tlie  same 

The  same.  Selection  by  the  pur- 
chaser, when  sufficient    . 

The  same 

Property  acquired  by  verbal  gift 
without  delivery    . 

The  general  rule  applicable  in 
these  cases       .... 

Symbolic  delivery 

Goods  distinguished  by  marks 
or  by  separation    . 


183 


183 


184 


185 


186 

187 
188 
189 

190 
191 

193 

193 
194 

195 


§  168  Plaintiflf  must  prove  himself  to  be  the  owner  of  the 
identical  property  sued  for.  It  is  an  inflexible  rule  in 
replevin  tliat  the  plaintiff  must  show  himself  to  be  the  owner 
of  the  identical  articles  for  which  the  suit  is  brought,  or  that 


PROPERTY   MUST   BE   CAPABLE   OF   DEUVERY.  95 

he  is  entitled  to  their  immediate  possession.  It  is  not  suffi- 
cient that  he  own  goods  of  like  description  and  value;  he  must 
show  that  the  identical  property  described  in  the  writ  and 
pleadings  is  his,  and  also  tiiat  the  articles  can  be  distinguished 
and  separated  from  all  others,  or  he  will  fail  in  his  action.  ^ 
The  few  exceptions  to  this  rule  are  in  cases  where  identitica- 
tion  is  impossible  and  of  no  importance.  They  will  be  noted 
hereafter. 

§  169.  The  writ  must  describe  tlie  property  particularly. 
The  writ  must  specify  the  particular  property  to  be  replevied. ' 
Thus,  when  the  property  was  described  as  "Buckwheat,  valued 
at  three  hundred  dollars,"  or  "  Sweet  potatoes  valued  at  thirty- 
nine  dollars,"  or  "  About  ten  acres  of  potatoes,"  or  "  Four 
acres  of  squash,"  there  was  a  failure  to  identify  the  property, 
or  to  furnish  any  means  by  which  it  could  be  ascertained,  and 
the  writ  failed. ^  But  where  the  sherilf  levied  on  coin  which 
was  by  consent  and  for  convenience  exchanged  for  bank  bills, 
this  alteration  was  held  not  to  prejudice  the  rights  of  a  stranger 
to  the  proceeding  who  claimed  to  own  the  money  and  sought 
to  recover  the  bills  in  replevin.* 

§  170.  The  property  must  be  capable  of  delivery.  The 
property  must  be  in  esse,  and  in  such  form  of  existence  that 
it  may  be  the  subject  of  delivery.  Where  a  colt,  the  expected 
progeny  of  a  mare  owned  by  another,  was  the  subject  of  dis- 
pute, replevin  was  not  the  proper  form  of  action. ^     Neither 

'  3  Bla.  Com.  145;  1  Ch.  Pleadings,  163;  Hurd  v.  West,  7  Cow.  752;  Sny- 
der v.  Vaux,  2  Rawle,  (Pa.)  423;  Ames  v.  Miss.  Boom  Co.,  8  Minn.  470. 

«  Snedeker  v.  Quick,  (6  Halst.)  11  N.  J.  179;  Pope  v.  Tillman,  7  Taunt. 
642;  Davis  v.  Easley,  13  111.  193. 

2  Welch  V.  Smith,  45  Cal.  230.  Reasonable  certainty  must  be  used  in  the 
description.  Rooti?.  Woodruft,  6  Hill,  (N.  Y.)418;  Snyder  ■».  Vaux,  2  Rawle, 
427;  Kaufmann  ■».  Schilling,  58  Mo.  219;  Gray  u.  Parker,  38  Mo.  160; 
Ryder  v.  Hathaway,  21  Pick.  305;  Hart  «.  Fitzgerald,  2  Mass.  509;  Carlton 
V.  Davis,  8  Allen,  (Mass.)  94;  Low  v  Martin,  18  111.  286;  Reese  v.  Harris, 
27  Ala.  306;  Stevens  v.  Osman,  1  Mich.  92;  Farwell  t.  Fox,  18  Mich.  169; 
Stanchfield  ?7.  Palmer,  4  G.  Greene,  (Iowa,)  25;  Brown  v.  Sax,  7  Cow.  95; 
Heard  v.  James,  49  Miss.  245;  Root  v.  Woodruff,  6  Hill,  424;  Smith  v. 
Sanborn,  6  Gray,  134;  Dodge  v.  Brown,  22  Mich.  449. 

*  St.  Louis  &  Alton  R.  R.  v.  Castello,  28  Mo.  380. 

*  McCarty  v.  Blevins,  5  Yerger,  (Tenn.)  196. 


96  DESCRIPTION,    IDENTITY    OF   THE   GOODS. 

would  the  action  lie  for  a  slave  who  was  dead  at  the  time  of 
the  commencement  of  the  suit,^  or  for  property  destroyed 
before  the  suit  was  begun. ^  In  these  and  similar  cases,  where 
tlie  property  is  not  in  existence  at  tlie  time  the  suit  is  com- 
menced, there  can  be  no  delivery,  and  for  that  reason  replevin 
is  not  the  proper  form  of  action. ^  Some  novel  and  intricate 
questions  will  arise  under  this  head  touching  the  separation 
of  goods  purchased  from  bulk,  the  mixture  or  confusion  of 
goods  belonging  to  different  owners,  the  change  of  form  which 
goods  may  undergo  in  the  liands  of  the  defendant,  the  effect 
which  these  conditions  may  have  upon  the  rights  of  the  sev- 
eral parties  claimant,  as  well  as  in  relation  to  the  description 
of  the  goods. 

§  171.  Strictness  of  the  rule  in  regard  to  description  and  the 
reasons  for  it.  An  exceedingly  strict  practice  prevails  as  to 
the  description  of  the  chattels  sued  for.  The  rule  is,  that  the 
property  must  be  particularly  described,  not  simply  by  the 
number  and  class  of  articles,  but  that  each  article,  where  this 
is  practicable,  be  so  described  that  it  can  be  identified  and  de- 
livered by  reference  to  the  description  only.  Thus,  where  the 
property  is  described  as  "six  oxen,"  it  is  not  sufficient.  If 
they  be  called  "  six  red  oxen,"  this  would  confine  the  selection 
to  a  class —  that  is,  to  "  red  oxen  ";  but  it  would  still  be  un- 
certain which  "  red  oxen  "  were  intended.  To  obviate  this, 
the  size,  age,  marks  or  spots,  if  any,  and  the  ]>lace  whei'e  they 
are,  should  be  stated,  with  any  other  particulars  that  would 
lead  to  their  identification,*  the  object  being  not  only  to  ap- 
prise the  defendant  what  property  the  plaintiff  will  assert  title 
to,  but  to  indicate  to  the  officer  the  property  which  he  is  to 

'  Caldwell  v.  Fenwick.  2  Dana,  (Ky.)  333. 
«  Burr  V.  Dauglierty,  21  Ark.  559. 

8  Lindsey  v.  Perry,  1  Ala.  (n.  s.)  203;  Chissom  v.  Hawkins,  11  Ind.  318. 
See  Otis  v.  Sill,  8  Barb.  103,  for  an  interesting  case  of  sale  of  property  not 

in  esse. 

*  Stevens  v.  Osman,  1  Mich.  92;  Wilson  v.  Gray,  8  "Watts,  Pa.  39.  In 
Farwell  v.  Fox,  18  Mich.  169,  the  court  held  "  six  red  oxen  "  sufficient.  In 
Indiana,  "one  white  shote  of  the  value  of  fourteen  dollars,"  was  held 
sufficient. 

Onstatt  V.  Ream,  30  Ind.  259;  but  these  cases  do  not  a^ee  with  the  cur- 
rent of  authority.     Compare  Dowell  v.  Kichardson,  10  Ind.  573. 


GOOD   IN    TRESPASS    NOT   SUFFICIENT   IN   REPLEVIN.  97 

seize  and  deliver  under  the  writ,  so  that  there  may  be  no  doubt 
or  uncertainty  ;i  for  example,  "  fifteen  hundred  pounds  of  cot- 
ton seed "  was  held  sufficient  to  describe  the  substance  and 
quantity;  but  something  further  should  have  been  added,  as 
that  it  was  in  such  a  house  or  place,  to  enable  the  officer  to 
lind  and  identify  it  from  the  writ.2 

§  172.  The  same.  A  description  good  in  trespass  or  trover 
not  suflacient  in  replevin.  A  description  M^hich  is  perfectly 
good  in  detinue,  trover  or  trespass  is  not  necessarily  good  in 
replevin.  The  distinction  is,  that  in  those  actions  the  goods 
themselves  are  not  in  dispute,  simply  their  value,  while  in  re- 
plevin the  identity  of  the  property  often  forms  the  chief  ques- 
tion in  controversy;  and,  while  it  would  be  competent  for  a 
plaintiff  to  recover  the  value  of  a  "  red  ox  "  in  trover,  yet 
that  description  would  not  be  sufficient  in  an  action  of  replevin. ^ 

§  173.  The  same.  Illustrations  of  the  rule.  ''  Divers  goods 
and  chattels;"*  or,  "a  quantity  of  corn,  about  two  hundred 
bushels;  "5  or,  "a  lot  of  goods  in  the  store  of  A.,"^  would 
not  be  sufficient  description  in  replevin,  though  perhaps  they 
would  be  in  trover.  In  an  action  of  trover  for  "forty  ounces 
of  mace,  nutmegs  and  cloves,"  without  saying  how  much  of 
either,  the  description  was  held  sufficient,  but  would  not  have 
been  in  replevin.''  So,  "  fourteen  skimmers  and  ladles,  and 
three  pots,"  is  faulty  in  replevin,  but  might  not  be  in  trespass 
or  trover;^  but  a  box  of  skins  and  furs  marked  "J.  Windor, 
Logansport,  Ind.,"  is  sufficient.^     And  the  general  rule  is,  that 

'  Ruch  V.  Morris,  28  Pa.  St.  245. 

«  Hill  V.  Robinson,  16  Ark.  90. 

»  Kinaston  v.  Moor,  Cro.  Car.  89;  Farwell  v.  Fox,  18  Mich.  169;  Taylor 
1).  Wells,  1  Mod.  46;  Gordon  v.  Hostetter,  37  N.  Y.  103;  Hartford  v.  Jones,  2 
Balk.  654.  The  declaration  ouglit  to  be  accurate  in  setting  up  the  number, 
kind  and  description  of  the  cattle.  Bull  N.  P.  52;  Neiler  v.  Kelley,  69 
Pa.  St.,  407;  Wood  v.  Davis,  1  Mod.  290. 

*  Pope  V.  Tillman,  7  Taunt.  642 ;  Warner  v.  Aughenbaugh,  15  S.  &  R. 
(Pa )  9. 

'  Stevens  v.  Osman,  1  Mich.  92. 

«  Edgerly  v.  Emerson,  3  Foster,  (23  N.  H.)  555. 

'  Hartford  v.  Jones,  2  Salk.  651. 

8  Bern  v.  Mattaire,  Ca.  Temp.  H.  119. 

»  Minchrod  v.  Windoes,  29  Ind.  288. 
7 


yo  DESCKIPTION,    IDENTITY    OF   THE    GOODS. 

a  description  which  will  enable  the  sheriff,  aided  by  inquiries, 
to  identify  the  propert}'',  will  be  sufficient  to  support  the  action.^ 

§  174.  The  same.  "  All  articles  of  household  furniture  now 
contained  in  said  house,  (describing  it,)  consisting  of  carpets, 
chairs,"  etc.,^  is  good.  So,  of  "  five  hundred  and  seventy-two 
three-year  old  Texas  cattle,  now  in  possession  of  the  party  des- 
ignated, in  Morris  Co.,  Kansas"  ;3  or,  "all  the  stock,  tools, 
and  chattels  belonging  to  the  mortgageor,  in  and  about  the 
wlieelwright  shop  now  occupied  by  him."^  A  description 
wliich  is  sufficient  to  pass  property  is  usually  sufficient  in 
replevin.^ 

§  175.  When  the  sufficiency  of  description 'is  a  question  for 
the  jury.  Where  the  identity  of  tlie  property  or  the  cori-ect- 
ness  of  the  description  becomes  a  question,  it  is  for  the  jury 
to  determine  from  the  evidence.  Suppose  the  description  ran, 
"A  black  horse,  now  in  the  stable  of  A."  This  would  doubt- 
less be  sufficient;  but  suppose  the  evidence  showed  there  were 
two  black  horses  in  that  stable.  It  would  then  be  a  proper 
question  for  the  jury  to  determine  whether  or  not  the  plaintiff 
was  entitled  to  the  horse  delivered.^  And  this  rule  would 
apply  in  all  cases  where  the  question  is  as  to  whether  a  given 
description  applied  to  or  covered  the  property  in  dispute;  but 
if  the  question  was  as  to  the  sufficiency  of  a  given  description 
to  pass  title  or  sustain  the  action,  it  would  be  for  the  court, 
and  not  tlie  jury,  to  decide. 

§  176.  Synonymous  descriptions.  Illustrations  of,  and 
when  allowable.  The  term  heifer  may  be  used  to  describe  a 
cow.  "I  know  of  no  authority,"  says  Gray,  J.,'  "for  con- 
sidering '  heifer  '  to  be  a  mis-description  of  a  cow,  except  in 

'  More  V.  Clipsam,  Allen,  33;  Same  v.  Same,  Sty.  71;  Smith  v.  McLean, 
24  Iowa,  321;  Lawrence  v.  Coates,  7  Ohio  St.  194;  Buckley  ■».  Buckley,  9 
Nev.  379. 

■■'  Beach  v.  Derby,  19  111.  619. 

3  Brown  v.  Holmes,  13  Kan.  492. 

4  Harding  v.  Coburn,  12  Met.  333;  Morse  v.  Pike,  15  N.  H.  529;  Burdett 
V.  Hunt,  25  Me.  419;  Wolfe  v.  Dorr,  24  Me.  104;  Winslow  «.  Merch.  Ins. 
Co.,  4  Met.  306. 

»  City  of  Fort  Dodge  v.  Moore,  37  Iowa,  388. 

*  Vonnum  v.  Thomp^^on,  38  111.  144. 

'  Pomeroy  v.    Trimper,    8  Allen,  (Mass.)  403. 


RULE    AS    TO    CERTAINTY    OF    DESCRIPTION.  99 

penal  statutes. "^  Upon  tlie  authority  of  these  cases,  it  may 
be  proper  to  describe  a  ho^^  as  a  pig,  or  vice  versa^'  colt  may 
perhaps  be  used  for  horse.  But  tlie  safer  way  is  to  make  the 
description  accurate,  and  in  the  terms  which  are  in  common 
use  wliere  the  suit  is  brouglit,  or  in  the  trade  or  business  witli 
which  it  is  connected. 

§177.  The  rule  as  to  certainty  of  description.  This  action 
does  not  lie  for  money,  unless  it  be  in  a  bag  or  package,  or  in 
some  way  distinguished  from  all  other  money; 2  but  it  lies  for 
money  or  jewels  in  a  bag,^  or  bonds  which  are  numbered  and 
can  be  identified.*  "When  coin  belonging  to  several  different 
owners  was  in  a  safe,  and  the  sheriff,  with  a  writ  of  attach- 
ment, separated  eighteen  hundred  dollars  from  the  remainder, 
and  put  it  in  a  bag,  and  the  plaintiff  brought  suit  in  replevin 
to  recover  the  monej'-  from  the  sheriff,  the  court  regarded  the 
separation  as  sufficient  to  enable  him  to  sustain  the  action. ^ 

§  178.  The  same.  The  plaintiff  alleged  that  he  was  induced 
by  fraud  to  buy  a  book,  and  to  pay  one  thousand  dollars,  by  a 
draft,  which  was  delivered  to  a  banker,  and  by  him  collected 
and  placed  to  the  credit  of  the  seller.  Plaintiff  sued  for  one 
thousand  dollars  gold.  On  leave  given  to  amend,  he  induced 
the  defendant,  the  banker,  to  put  nine  hundred  and  fifty  dollars 
in  coin  in  a  bag,  and  brought  replevin  for  it.  Held^  that 
he  could  not  recover;  that  he  showed  no  title  to  the 
specific  property;    that  the  banker  could  not   make   it   the 

'  H.  P.  C,  183;  Carruth  v.  Grassie,  11  Gray,  211;  Freeman  ».  Carpenter, 
10  Vt.  434.  A  man  brought  replevin  for  a  "heifer,"'  and  in  his  writ  of 
second  deliverance  he  called  it  a  "  cow."  Fitzherbert  said  the  writ  was 
good.     It  was  a  heifer;  it  may  be  a  cow  now.    Y.  B.  26  H.  8,  6,  27. 

^Holiday  v.  Hicks,  Cro.  Eliz.  661;  Draycot  %.  Piot.  Cro.  Eliz.  818; 
Rapalje  n.  Emory,  2  Dall.  51.  "  If  I  bail  twenty  pounds  to  one  to  keep  for 
my  use,  if  the  money  were  not  contained  in  a  bag,  coffer  or  box,  detinue 
doth  not  lie"  — Core's  Case,  Dyer,  22  6;  6  E.  4  11;  7  H.  4  14;  Banks  d. 
Whetstone,  Moore,  394 — but  trover  would  lie.  Hall  ».  Dean,  Cro.  Eliz.  841. 
As  to  bank  bills,  see  Dows  -».  Bignall,  Lalor's  Suplmt.  408;  Warner  v.  Sauk 
Co.  Bank,  20  Wis.  492;  Jackson  v.  Anderson,  4  Taunt.  24;  Skidmore  b. 
Taylor,  29  Cal.  619;  Ames  v.  Miss.  Boom  Co.,  8  Minn.  472. 

2  Bull  N.  P.  32. 

^  Sager  n.  Blain,  44  Hand.  (N.  Y.)  448. 

^  Griffith  10.  Bogardus,  14  Cal.  410.  The  distinction  between  money  and  spc- 
ci*'-  property  is  stated  by  Lord  Maksfield  in  Clarke  v.  Shee,  1  Cowp.  R.  200. 


100  DESCRIPTION,   IDENTITY   OF   THE    GOODS. 

money  of  his  dejjositor,  so  as  to  subject  it  to  the  replevin 
suit,  b}'-  putting  it  in  a  bag,  without  the  depositor's  consent.^ 

§  179.  Deseription  of  numerous  articles,  as  the  goods  in  a 
store.  Where  the  articles  are  numerous,  and  a  separate  de- 
scription of  each  would  not  aid  in  their  identity,  a  more  general 
method,  if  it  be  definite,  may  be  employed.  Thus:  "  A  certain 
storehouse,  warehouse,  and  the  goods  therein  contained,  being 
the  store  in  Council  Bluffs,  in  said  State  and  county,  known 
and  designated  as  tlie  store  of  your  petitioner,"  is  sufficient  for 
the  store  and  contents. ^  So,  when  a  chattel  mortgage 
enumerates  sundry  articles  specifically,  and  also  includes 
"  all  other  articles  of  personal  property  in  and  about  the 
mortgageor's  shop,"  the  general  description  will  pass  all.^ 

§  180.  Descriptions  which  may  refer  to  kind  or  quantity. 
It  may  be  a  question,  at  times,  whether  the  words  used  in  the 
writ  are  employed  to  designate  the  kind  and  description  of  the 
article,  or  the  quantity.  Thus,  "barrels  of  lime"  may  mean 
lime  in  barrels,  or  it  may  refer  to  the  quantity  in  bulk;  "bar- 
rels of  flour "  may  be  a  proper  description  of  flour  in  bags, 
because  the  common  usage  of  the  trade  in  many  parts  of  the 
country  warrants  it,  but  the  better  practice  is  to  avoid  any 
description  which  may  be  ambiguous.  Where  the  writ 
directed  the  slieriff  to  take  "  barrels  of  No.  1  mackerel,"  and 
the  return  showed  that  he  took  barrels  and  half  barrels,  the 
defendant  moved  for  a  return  of  the  half  barrels,  upon  the 
ground  that  they  were  not  described  in  the  writ;  whereupon 
plaintiff  2:)roved  that  when  the  writ  was  being  served,  the 
defendant  agreed  that  two  half  barrels  should  be  taken  for  a 
whole  one,  and  the  court  held  that  "  the  term  '  barrel '  should 
be  regarded  as  a  designation  of  quantity,  irrespective  of  the 
mode  in  which  it  was  packed,  or  the  particular  vessels  in 
which  it  was  contained."* 

'  Pilkington  «.  Trigg,  28  Mo.  98. 

'  Ellsworth  V.  Heushall,  4  G.  Greene,  (la.)  418.  To  invoice  a  stock  would 
be  tedious,  expensive,  and  sometimes  impossible;  and  the  courts  have  held 
that  when  the  store  is  identified,  the  "  contents  "  are  sufficiently  ascertained 
by  such  description.    Litchman  v.  Potter,  116  Mass.  373. 

3  Harding  v.  Coburn,  12  Met.  333. 

*  Gardner  v.  Lane,  9  Allen,  (Mass.)  493. 


PROOF   AS   TO   DESCRIPTION.  101 

§  181.  A  quantity  described  as  "about"  so  much.  On  a 
writ  of  replevin  for  "  about  four  hundred  tons  bog  ore,"  the 
sheriff  was  not  authorized  to  deliver  seven  hundred  and  twenty 
tons.  Such  a  writ  was  held  defective,  and  that  the  sheriff 
might  have  refused  to  execute  it.  If  the  ore  had  been  identi- 
fied as  such  a  lot  or  such  a  pile,  describing  it,  the  number  of 
tons  miglit  have  been  regarded  as  surplusage. ^ 
•  §  182.  The  proof  as  to  description,  must  correspond  with 
the  writ.  The  proof  must  correspond  to  the  writ  and  decla- 
ration as  to  description  of  the  property;  any  material  variance 
will  defeat  the  action.  Where  the  suit  was  for  two  "bay 
horses,"  and  the  proof  showed  one  of  them  to  be  a  sorrel,  the 
variance  was  fatal.^  In  trover  for  "a  slave  named  John,"  the 
proof  showed  conversion  of  a  slave  but  not  that  his  name  was 
John;  held^  the  plaintiff  could  not  recover,^  When  a  note 
was  described  in  the  declaration  as  "a  note  for  $180,"  and  the 
proof  was  a  note  for  $300;  held^  a  fatal  variance.*  But  an 
omission  of  some  words  in  the  description  which  does  not 
render  the  writ  so  defective  that  the  property  cannot  be  iden- 
tified, such  as  the  omission  of  the  word  "  feet,"  in  describino- 
timber,  does  not  render  the  writ  void.  The  sheriff  may  per- 
haps refuse  to  serve  it  unless  it  be  amended,  but  if  he  does, 
by  taking  the  right  property,  the  court  will  have  jurisdiction. ^ 

§  183.  Exact  quantity  need  not  be  given  where  the  partic- 
ular property  is  indicated.  It  is  not  essential  that  exact 
quantities  be  stated  when  the  description  is  otherwise  certain; 
as  for  example,  "  a  pile  of  wheat,"  or  "  a  quantity  of  barrels 
of  pork,"  in  a  certain  warehouse,  would  be  good  without  men- 
tioning the  number  of  bushels  or  barrels;  and  a  description 
sufficient  to  pass  title  will  be  good  in  this  action.^ 

§  184.  Writ  of  return  and  verdict  may  follow  declaration, 
as  to  description.     The  description  in  the  writ  of  return  is 

^  DeWitt  «.  Morris,  13  Wend.  495. 

2  Taylor  v.  Riddle,  35  111.  oG7. 

3  Ward  v.  Smith.  8  Ired.  (N.  C.)  296. 

4  Bissel  B.  Drake,  19  Johns.  66. 

*  Nolty  ».  The  State,  17  Wis.  668. 

«  Scudder  v.  Worster,  11  Cush.  573;  Groat  v.  Gile,  61  N.  Y.  431;  Susque- 
hanna Boom  Co.  v.  Finney,  58  Pa.  St.  200. 


102  DESCRIPTION,    IDENTITY    OF   THE    GOODS. 

sufficient,  if  it  describe  the  property  the  same  as  the  declara- 
tion. If  there  is  a  misdescription  the  phiintiif  is  responsible 
and  must  suffer  the  consequences,  i  Where  property  was 
specifically  described  in  the  complaint,  and  in  the  verdict  was 
referred  to  as  "said  property,"  it  was  sufficient.^ 

§  185.  When  objections  to  the  insufiaoiency  of  description 
must  be  taken.  When  the  defendant  desires  to  object  to  the 
description  for  uncertainty,  he  must  do  so  at  the  first  available 
opportunity;  if  he  omit  to  do  so  and  plead  to  the  merits,  or 
give  bond  under  the  statute,  as  owner,  to  retain  the  proj^erty, 
he  will  be  considered  as  having  waived  such  defects.  ^  So  a 
declaration  for  a  "lot  of  sundries,"  is  bad  and  would  undeni- 
ably have  been  so  held;  but,  after  the  defendant  has  pleaded 
that  they  are  his,  and  has  gone  to  trial,  he  cannot  ask  the 
court  to  reverse  the  judgment  because  the  description  is  un- 
certain. If  he  had  really  labored  under  this  want  of  knowl- 
edge, he  had  the  means  to  protect  himself,  before  pleading.* 
The  reason  of  this  rule  is,  that  the  objection  is  in  the  nature  of 
a  dilatory  motion,  and  the  rules  which  apply  to  such  motions 
must  generally  govern  here. 

§  186.  Replevin  does  not  lie  for  goods  sold,  unless  they  are 
in  sonae  way  separated  from  others  or  identified.  One  of  the 
familiar  rules  of  the  law  concerning  sales,  is,  that  a  simple 
bargain  is  not  sufficient  to  transfer  title  to  chattels  unless  it  be 
accompanied  by  some  actual  or  symbolic  delivery,  or  by  some 
separation  of  the  chattels  sold,  to  distinguish  them  from 
others.^  Thus,  a  contract  to  sell  and  deliver  a  certain  number 
and  kind  of  hogs  belonging  to  the  seller,  at  a  particular  time 
and  place,  will  not  vest  sufficient  title  in  the  purchaser  to  sus- 
tain replevin, 6  for  the  reason  that  where  anything  remains  to 
be  done  to  complete  the  contract  of  sale,  the  title  does  not 
pass.     The  contract  must  be  completed  before  it  will  transfer 

1  Lammers  v.  Myers,  59  111.  216. 
«  Anderson  v.  Lane,  33  111.  103. 
3  Ruch  V.  Morris,  28  Pa.  St.  245. 
■»  Warner  v.  Aughenbaugh,  15  S.  &  R.  (Pa.)  9. 

»  Hutchinson  v.  Hunter,  7  Barr.  (Pa.  St.)  140;  White  v.  Wilks,  5  Taunt. 
176;  Stevens  v.  Eno,  10  Barb.  95;  Stephens  v.  Santee,  49  N.  Y.  35. 
«  Lester  v.  East,  49  Ind.  588.    See  Suggetts,  Admr.  v.  Cason,  26  Mo.  221. 


EEPIXP^IN   DOES   NOT   LIE    UNLESS   GOODS    IDENTIFIED.       103 

the  title.  "Where  a  party  agreed  to  deliver  hedge  plants  and 
to  take  his  pay  in  land,  and  learning  that  the  title  to  the  land 
was  defective,  refused  to  deliver,  yet  notified  the  party  he 
could  have  the  plants  on  paying  for  them,  the  purchaser  took 
no  such  title  as  would  sustain  replevin. ^  But  where  one 
bought  and  paid  for  a  quantity  of  corn  out  of  the  seller's  lot, 
and  the  vendor  afterwards  sold  the  whole,  the  fact  that  the 
corn  was  not  measured  or  set  apart,  will  not  defeat  an  action 
for  money  had  and  received. 2 

§  187.  The  same.  If  the  owner  of  a  large  quantity  of  a 
particular  kind  of  merchandise  sells  part  of  it,  property  in 
that  part  does  not  pass  unless  it  be  in  some  way  set  apart  or 
distinguished  from  the  rest.  Consequently,  the  purchaser  can- 
not maintain  replevin,  even  though  he  has  paid  full  value  for 
it. 3  But  if  the  propei-ty  is  so  indicated  by  description  that  it 
may  be  separated,  it  will  be  sufficient  to  pass  title  upon  which 
to  base  the  action.*  Where  the  action  was  for  the  price  of 
bark,  sold  at  a  stipulated  price  per  ton,  it  was  agreed  that  it 
should  be  weighed  by  two  persons,  each  party  to  name  one. 
Part  of  the  bark  was  weighed  and  delivered,  but  the  balance 
was  injured  by  a  storm,  and  the  purchaser  refused  to  take  it. 
The  court  held  that,  as  the  bark  was  to  be  weighed  before  de- 
livery, the  property  remained  with  the  seller,  and  the  loss  fell 
on  hira.5 

S  188.  The  same.  Defendant  agreed  to  make  three  wagons 
for  the  plaintiff;  but  as  the  contract  did  not  relate  to  any  par- 
ticular wagons,  it  would  not  sustain  replevin  by  the  purchaser.^ 
Neither  would  an  agreement  to  sell  entitle  the  purchaser  to  an 
action  for  possession  unless  the  particular  property  was  agreed 

'  Barrett  v.  Turner,  3  Neb.  174.  See  Sutro  v.  Hoile,  2  Neb.  186;  Bell  v. 
Farrar,  41  111.  403;  Tyler  v.  Strang,  21  Barb.  198;  Dixon  v.  Hancock,  4 
Cush.  96. 

s  Long  v.  Spruill,  7  Jones,  (N.  C.)  96. 

«  Crofoot  V.  Bennett,  2  N.  Y.  258;  Scudder  v.  Worster,  11  Cush.  573. 

*  Ropes  V.  Lane,  9  Allen,  (Mass.)  510;  Groat  v.  Gile.  51  N.  Y.  431. 

e  Siuimonds  v.  Swift,  5  B.  &  C.  857. 

«  Upkike  V.  Henry,  14  111.  378 ;  Halterline  v.  Rice,  63  Barb.  593.  See,  also, 
Pettengill  v.  Merrill,  47  Me.  109. 


104:  DESCKIPTION,    IDENTITY    OF   THE    GOODS. 

upon  and  sold.i  So,  of  a  contract  to  sell  two  liundred  tons 
pig  iron.  Yendors  were  daily  making  large  quantities.  It 
was  piled  up  as  they  saw  fit;  not  marked,  nor  did  the  pur- 
chaser ever  see  it.  Held,  that  he  could  not  maintain  replevin 
against  the  sheriff,  who  levied  on  it  by  virtue  of  an  execution 
against  the  vendor.^ 

§  189.  The  same.  A  party  bought  and  paid  for  two  thou- 
sand rolls  of  paper.  He  left  one  thousand  rolls  in  the  store, 
not  separated,  to  remain  until  he  should  call  for  it.  The  seller 
soon  after  made  an  assignment  for  the  benefit  of  his  creditors, 
and  the  purchaser  replevied  the  paper  from  the  assignee,  who 
thereupon  brought  trespass  against  the  plaintiff*  in  replevin, 
and  the  sheriff".  Gibson,  C.  J.,  said:  "Had  the  pieces  been 
separated  from  the  rest,  a  small  excess  would  not  have  vitiated 
the  sale;  but  there  is  no  evidence  that  the  bargain  regarded 
any  gross  lot,  or  any  particular  pieces.  The  witness  testified 
that  the  purchaser  was  to  have  his  paper  out  of  the  cellar,  but 
that  he  had  not  selected  it,  nor  had  any  particular  rolls  been 
set  apart  for  him.  The  vendors  might  have  delivered  him  any 
other  paper  in  the  store."  Held,  that  trespass  lay  by  the 
assignee.  2 

§190.  The  same.  Selection  by  the  purchaser ;  when  suffi- 
cient. When  the  action  was  for  one  billiard  table,  the  defend- 
ants justified,  and  claimed  a  return.  It  appears  that  the 
defendants  sold  four  billiard  tables,  and  took  a  chattel  mort- 
gage. At  the  foot  of  the  bill  of  sale  was  an  agreement,  that 
after  three  hundred  dollars  should  be  paid,  they  would  give  a 
receipt  in  full  for  one  table,  and  so  continue,  as  payments  were 
made,  until  all  were  paid  for.  They  afterwards  received  the 
amount  and  executed  a  receipt  in  full  for  one  table.  The  pur- 
chaser afterwards  sold  all  his  title  to  the  four  tables.  The  sub- 
sequent payments  not  being  made,  the  defendants,  under  their 
chattel  mortgage,  seized  all  four  of  the  tables  and  sold  them. 
The  assignor  of  the  purchases  then  demanded  one  of  the  tables, 

1  Suggett's  Admr.  v.  Cason,  26  Mo.  224. 

2  First  Nat.  Bank  of  Marquette  v.  Crowly,  24  Mich.  498.  See,  also,  Scott 
t.  King,  12  Ind.  203 ;  Cloud  v.  Moorman,  18  Ind.  40. 

8  Golder  v.  Ogden,  15  Pa.  St.  528. 


PKOrERTY    ACQUIRIi:D    BY   VERBAL   GIFT.  105 

and  afterwards  brought  this  suit.  The  court  held,  in  substance, 
that  the  defendant  had,  under  the  chattel  mortgage,  a  right  to 
three  of  the  tables,  but  not  to  four.  That  upon  the  execution 
of  the  receipt  in  full  for  one  table,  nothing  remained  but  to 
select  or  designate  that  particular  table  out  of  the  four.  Until 
this  was  done  thej  could  not  claim  any  one;  but,  as  they  took 
the  four  tables  from  the  room  where  they  were  stored,  they 
obviously  must  have  taken  them  one  at  a  time.  In  legal  effect, 
they  made  their  selection  of  their  three,  when  they  had  re- 
moved three,  and  that  they  had  no  right  to  take  the  fourth. 
That  the  plaintiff's  right  vested  absolutely  in  the  fourth  table, 
when  the  defendants  had  exercised  their  right  in  selecting 
three,  and  they  must  be  regarded  in  legal  effect  as  having 
selected  the  first  three  which  they  took.i 

§  191.  The  same.  Where  the  defendants  agreed  to  sell  all 
the  rye  they  had,  to  be  delivered  at  a  certain  warehouse, 
within  ten  days,  and  to  take  a  note  at  three  months,  the 
vendor  delivered  the  grain  at  the  warehouse,  whore  it  was 
stored,  subject  to  his  own  order.  The  note  was  not  tendered 
within  the  time  agreed  upon,  but  a  day  or  two  tliereafter  the 
purchaser  sent  a  carrier  with  an  order  for  the  grain.  The 
vendor  refused  to  deliver  on  tlie  order,  but  delivered  it  to  the 
carrier,  to  be  carried  and  delivered  on  his  own  account.  While 
in  the  charge  of  the  carrier,  it  was  replevied  by  the  purchaser 
under  the  contract.  Held,  that  there  was  no  delivery  of  the 
grain  under  the  contract.  If  the  delivery  to  the  carrier  had 
been  for  the  use  of  the  purchaser,  it  would  have  been  dif- 
ferent. 2 

§  192.  Property  acquired  by  verbal  gift,  without  delivery. 
Questions  concerning  the  title  acquired  by  verbal  gift  of 
personal  proj^erty,  with  or  without  actual  delivery,  frequently 
arise.  The  general  rule  may  be  stated,  that  a  verbal  gift, 
witliout  being  accompanied  by  delivery,  will  not  vest  the 
donee  with  the  title.  But  when  there  has  been  an  actual 
manual  delivery,  or  where  the  article  is  bulky  and  incapable 

»  Clark  V.  Griffith,  24  JST.  Y.  596. 

«  Lester  v.  McDowell,  18  Pa.  St.  94.  See,  also,  Bradley  v.  Michael,  1 
Carter,  (Ind.)  552. 


106  DESCRIPTION',    IDENTITY    OF   THE   GOODS. 

of  actual  manual  delivery,  a  constructive  delivery  will  pass  the 
title  to  the  donee,  who  may  maintain  an  action  as  the  owner.  ^ 

§  193.  The  general  rule  applicable  in  these  cases.  A  full 
discussion  of  these  questions  is  more  particularly  appropriate 
to  a  work  on  contracts,  or  sales.  As  affecting  the  action  ot 
replevin,  tlie  rule  gathered  from  the  cases  before  mentioned, 
and  sustained  by  the  authorities,  is,  that  a  sale  and  agreement 
to  deliver  property,  without  any  actual  or  symbolic  delivery, 
or  some  separation  or  indication  of  the  property  sold,  to  dis- 
tinguish it  from  other  similar  property,  will  not  support 
replevin  by  the  purchaser ;2  but  any  separation  or  distinguish- 
ing of  the  goods  from  others,  so  that  they  can  be  identified  as 
the  particular  lot  sold,  will  be  sufficient  to  complete  an 
otherwise  valid  sale,  so  as  to  pass  the  title  and  enable  the 
vendee  to  maintain  replevin.  When  barrels  of  mackerel  were 
inspected  and  marked  "  No.  1,"  "  ISTo.  2,"  etc.,  a  sale  of  all 
marked  No.  1  will  pass  the  title  to  such  as  are  so  marked, 
without  any  other  separation. ^ 

§  194.  Symbolic  delivery.  Delivery  of  a  bill  of  lading  by 
the  owner  of  the  goods  shipped,  with  the  intention  to  transfer 
title  to  them,  or  as  security  for  money  advanced,  is  a  symbolic 
delivery  of  the  goods  shipped  under  it,  and  vests  in  a  party 
advancing  money  thereon  a  right  to  recover  the  property  in 
replevin.*  Such  a  transfer,  however,  is  not  absolute,  but  open 
to  explanation. 5  Unexplained,  it  amounts  to  2.  'prima  facie 
transfer  of  the  goods.  When,  however,  the  bill  of  lading  is 
accompanied  by  a  draft,  it  must  be  understood  to  mean  that 
the  consignees  take  the  property  subject  to  the  payment  of  the 
draft, ^  and  the  fact  that  the  consis^nor  was  indebted  to  them  on 


'  Consult  Hanson  «.  Millitt,  55  Me.  184;  Reed  -y.  Spaulding,  42  N.  H.  114; 
Carsvvell  ».  Ware,  30  Geo.  267;  Kidder  v.  Kidder,  33  Pa.  St.  2G8;  Hunter  v. 
Hunter,  19  Barb.  631;  Woodruff  «.  Coolc,  35  Barb.  505. 

2  Barrett  v.  Turner,  2  Neb.  172;  Lester  «.  East,  49  Ind.  588;  Straus  v.  Ross, 
25  Ind.  300.  See  Hodgkius  «.  Dennett,  55  Me.  559 ;  Winslovv  v.  Leonard, 
24  Pa.  St.  14. 

*  Ropes  V.  Lane,  9  Allen,  (Mass.)  510. 

<  Nat.  Bank  G.  Bay  «.  Dearborn,  115  Mass.  219. 
"  Pratt  v.  Parkman,  24  Pick.  42. 

•  First  Nat.  Bank  v.  Crocker,  111  Mass.  163. 


GOODS   DISTINGUISHED   BY    MARKS,    OR   BY   SEPARATION.       107 

overdrafts  would  not  alter  tlie  case.  "When  in  such  case  the 
consignees  obtained  possession  of  the  goods  without  payment 
of  the  draft,  the  consignors  could  sustain  trover  or  replevin 
for  their  recovery. 

§  195.     Goods  distinguished  by  marks,  or  by  separation. 

Sale  of  bales  distinguished  by  marks  and  numbers,  then  lying 
in  vendor's  warehouse,  to  remain  rent  free,  at  buyer's  option, 
was  held  to  be  a  sufficient  identification.!  So,  where  one  con- 
tracted, with  the  owner  of  timber  lands,  for  the  right  to  make 
staves  at  a  certain  rate  per  thousand,  the  title  passed  as  soon 
as  the  staves  were  completed,  and  the  maker  was  allowed  to 
bring  replevin  for  those  which  the  owner  had  seized  before 
they  were  counted  or  paid  for.  2 

'  Hotchkiss  V.  Hunt,  49  Me.  213.  See,  also.  Fifth  Nat.  Bank  Chicago  v.  Bay- 
ley,  115  Mass.  239;  Carter  v.  Willard,  19  Pick.  1;  Gibson  v  Stevens,  8  Uow. 
(U.  S,)384;  Nat.  Bank  Cairo^.  Crocker,  111  Mass.  163.  Fottyplace  v.  Dutch, 
18  Pick.  388,  is  an  interesting  case  of  conflicting  liens  and  symbolic  deliv- 
ery.   Morrison  v.  Dingley,  63  Me.  553;  May  v.  Hoaglan,  9  Bush.  (Ky.)  171. 

^  Mohn  V.  Stoner,  14  Iowa,  115. 


108 


COIy^FDSION    OF   GOODS   OF   DIFFERENT   OWNERS. 


CHAPTEE    YIII. 


CONFUSION  OP  GOODS  OF  DIFFERENT  OWNERS  —  CHANGE 

OF  FORM. 


Section. 
Mixture  or  confusion  of  goods 
belonging  to  diflferent  own- 
ers     196 

Willful  mixture  all  belongs  to 

the  innocent  party  .        .        .  197 
The  same.    Illustrations  of  the 

rule 198 

The  same.    Illustrations  of  the 

rule 199 

The  same    .        .  .        .  200 

The  same.     General  principles 

in  such  cases   ....  201 
Changing  marks  to  produce  con- 
fusion       202 

Mixture  of  grain;   when  each 
owner  may  take  his  share      .  203 

The  same 204 

The  same 205 

The  same.  Rule  in  Illinois  .206 
The  rule  in  New  York  .  .  207 
Wliere  an  officer  is  induced  by 
fraud  of  a  third  party  to  levy 
on  goods  not  the  property 
of  the  defendant  in  the  pro- 
cess   208 

General  statement  of  the  rule 

in  the  foregoing  cases    .        .  209 
Change  of  form,  and  the  effect 
of  such  change  on  the  rights 
of  the  parties         .        .        .210 


196. 


Rule  of  the  civil  law 

Goods  taken  by  mistake    . 

Change  of  form  does  not  change 
the  title  where  the  goods  can 
be  identified    .... 

The  same 

Goods  taken  by  a  thief  or  tres- 
passer and  enhanced  by  his 
skill  or  labor  .        .        .        . 

Rule  where  the  goods  come  to 
the  hand  of  an  innocent  pur- 
chaser 

Owner  should  reclaim  his  prop- 
erty  before  its  value  is  greatly 
enhanced         .        .        .        . 

Where  the  taking  is  wrongful 
the  taker  cannot  change  the 
title  by  any  change  in  the 
property 

Measure  of  damages  in  such 
cases        

Change  of  form  by  agreement 
does  not  affect  the  rights  of 
the  parties       .        .        .        . 

Property  taken  and  annexed  to 
real  estate  or  other  thing 
which  forms  the  principal 

Description  to  be  employed, 
where  the  property  has  under- 
gone a  change 


Section. 
.  211 
.  213 


213 

214 


215 


216 


217 


218 


219 


220 


221 


222 


Mixture  or  confusion  of  goods  belonging  to  different 
owners.  It  frequently  happens  that  property  of  similar  kinds 
belonging  to  different  owners  become  mixed,  by  accident  or 


WILLFUL   MIXTUBE.  109 

design,  and  as  a  result  of  such  mixture  neither  owner  can 
distinguish  what  portion  of  the  whole,  or  which  articles 
comprised  in  the  mass  belong  to  him. 

§  197.  Willful  mixture.  All  belongs  to  the  innocent  party. 
"  If  one  willfnllj  intermixes  his  monej,  corn,  or  hay,  with 
that  of  another,  without  his  approbation  or  knowledge,  or 
casts  his  gold  in  like  manner  into  another's  melting  pot,  our 
law,  to  guard  against  fraud,  allows  no  remedy  in  such  case, 
but  gives  the  entire  property,  without  account,  to  him  whose 
original  dominion  is  invaded,  and  endeavored  to  be  rendered 
uncertain,  without  his  consent.  But,  if  the  mixture  be  by 
consent,  tlicn  both  have  a  common  interest  in  proportion  to 
their  respective  shares."' 

§  198.  The  same.  Illustrations  of  the  rule.  "Where  a  per- 
son bouglit  a  stock  of  mortgaged  drugs  and  mixed  his  own 
with  them,  the  mortgagee  still  had  a  right  to  take  his  goods. 
And  if  in  so  doing  he  took  some  not  his  own,  they  being  so 
confounded  with  his  that  he  could  not  distinguish  them,  it 
would  be  wrong  to  charge  him  in  trespass. ^  The  party  is 
allowed  to  take  such  articles  as  he  can  positively  identify, 
under  the  idea,  that  as  to  such  goods,  no  mixture  or  confusion 
has  taken  place,  and  the  party  has  lost  none  of  his  rights  to 
them.  3 

§  199.  The  same.  Illustrations  of  the  rule.  Where  an 
officer  having  attached  goods,  mixed  them  with  other  similar 
goods  previously  attached  by  anotlier  officer,  he  loses  his 
special  property.*  And  where  a  mortgageor  carelessly  or  pur- 
posely mingles  his  unincumbered  goods  with  those  mortgaged 
and  sells  both,*" the  mortgagee  may  replevy  the  whole ;5  and  it 
is  for  the  purchaser  to  furnish  evidence  to  distinguish  the 

'2  Bla.  Com.  405.  See,  also,  Ward  v.  .^^yre,  3  Bulst.  323 ;  Root  v.  Bon- 
n^ma,  22  Wis.  539;  Lnpton  ».  White,  15  Ves.  432;  Hart  u.  Ten  Eyck,  2 
John.  Ch.  R.  62.  See  Dodge  v.  Brown,  22  Mich.  451;  Low  v.  Martin,  13 
111.  286;  McDowell  n.  Bissell,  37  Pa.  St.  164;  Sims  v.  Glazener,  14  Ala.  699. 

«  Fuller  v.  Paige,  26  111.  359. 

2  Dillingham  v.  Smith,  30  Me.  373;  Colwill  v.  Reeve,  2  Campb.  575; 
Smith  V.  Morrill,  56  Me.  566. 

*  Gordon  v.  Jenney,  16  Mass.  469. 

»  Adams  v.  Wildes,  107  Mass.  124.    Upon  this  subject,  consult  Johnson 


110  CONFUSION    OF   GOODS    OF   DIFFERENT    OWNERS. 

different  articles,  and  on  his  failure  to  do  so,  tlie  wliole  may 
go  to  tlie  mortgagee. 

§  200.  The  same.  When  tools  belonging  to  different  work- 
men, A.  and  B.,  were  mixed,  so  that  it  was  diffiftult  to  distin- 
guish them,  and  A.  sold  his  tools  to  0.  without  specifying 
them,  and  B.  had  the  tools  removed,  and  in  so  doing,  some  of 
A.'s  were  taken;  in  trespass  for  such  removal,  the  judgment 
was  for  defendant.* 

§  201.  The  same.  General  principles  in  such  cases.  The 
principle  which  seems  to  govern  in  such  cases,  is,  that  the 
mixing  or  confusion  is  regarded  as  a  wrongful  attempt  to 
deprive  the  owner  of  the  means  of  identifying  his  goods.  To 
guard  against  this  wrong,  the  law  leaves  the  party  who  has 
been  guilty,  without  a  remedy,  and  gives  the  goods  witho'it 
account  to  him  whose  rights  have  been  invaded.  But  this 
principle  is  not  carried  to  the  extent  of  revenge  or  punish- 
ment, except  in  cases  where  the  trespass  was  willful.  The 
law  will  not  suffer  the  principle  to  be  carried  further  than  is 
required  for  the  protection  of  an  innocent  party  from  injury, 
with  as  little  loss  to  the  other  as  is  consistent  with  the  inno- 
cent party's  rights. ^  The  further  principle  is  to  be  gathered 
from  the  cases  cited,  that  the  fact  of  mixture  or  confusion  of 
goods  does  not  change  the  rights  of  the  respective  owners, 
unless  it  produce  such  confusion  that  the  separate  property 
of  each  cannot  be  distinguished.  The  wrongful  turning  of 
horses  into  a  pasture  with  others  would  n)t  forfeit  the  horses, 
though  the  party  might  be  liable  for  the  trespass.  Neither 
would  the  mixture  of  any  other  goods  produce  a  change  in 
the  title  nor  make  the  parties  joint  owners,  unless  the  separa- 
tion of  the  different  articles  became  impossible  or  imprac- 
ticable. 

§  202.  Changing  marks  to  produce  confusion.  If  property 
is  marked  in  a  particular  way  by  the  owner,  and  another 

V.  Neale,  6  Allen,  227;  Ropes  v.  Lane,  9  Allen,  502;  Rockwell  v.  Saurdcrs, 
19  Barb.  473;  Seibert  v.  M'Henry,  6  Watts,  (Pa.)  301 ;  Hyde  v.  Cookson,  21 
Barb.  92;  Barron  v.  Cobleigb,  11  N.  H.  557. 

'  Rose  V.  Gallup,  33  Conn.  3;i8. 

»  Holbrook  v.  Hyde,  1  Vt.  286.    See  Simmons  v.  Jenkins,  76  111.  483. 


MIXTUKE   OF    GRAIN.  Ill 

without  his  consent  changes  the  mark,  or  marks  his  own 
property  in  a  similar  manner  for  the  purpose  of  creating 
confusion,  the  law  usually  gives  the  whole  to  the  innocent 
owner;  and  although  he  could  not  sustain  replevin  for  a  part 
of  the  property  unless  he  could  identify  it,  yet  he  may  in 
many  cases  have  replevin  for  the  whole.  Where  plaintiff  was 
the  owner  of  certain  logs,  marked  in  a  particular  manner,  and 
the  defendant  caused  another  mark  to  be  put  upon  them  so 
that  they  would  be  marked  like  his  own,  the  plaintiff  was 
permitted  to  sustain  replevin  for  the  entire  lot.i 

§  203.  Mixture  of  grain;  when  each  owner  may  take  his 
share.  When  the  mixture  occurs  without  wrong,  and  where 
from  the  very  nature  of  the  property  the  different  articles  are 
incapable  of  being  distinguished,  and  where  such  separation, 
could  it  be  made,  would  not  be  of  the  least  advantage  to  any 
one,  the  just  rule  and  the  current  authorities  is,  that  each  must 
take  his  share  from  the  common  mass.  Thus,  when  like  grain 
of  different  owners  is  mixed,  the  separation  is  not  only  impos- 
sible, but  the  failure  to  make  it  cannot  injuriously  affect  either 
party  in  the  slightest  degree.  And  in  all  such  cases  when  the 
mixture  has  been  by  consent,  or  under  circumstances  in  which 
the  mixture  would  be  reasonably  expected  by  both,  or  when 
it  has  been  occasioned  by  accident,  or  mistake,  and  without 
any  wrong  intent,  the  law  will  give  to  each  his  just  propor- 
tion,^  for  the  reason  that  in  such  case  the  mixture  does  not 
change  the  title,  nor  are  the  consequences  such  as  follow  the 
mixture  of  ingredients  incapable  of  separation. ^ 

§  204.  The  same.  When  plaintiff  delivered  barley  on  con- 
tract to  sell  for  cash,  and  it  was  put  in  a  warehouse  with  other 

•  Wingate  v.  Smith,  20  Me.  287;  Jenkins  v.  Steanka,  19  Wis.  127;  Willard 
V.  Rice,  11  Met.  493;  Beach  v.  Schmultz,  20  111.  185;  Weil  v.  Silverstone,  6 
Bush.  (Ky.)  698;  Thome  v.  Colton,  27  Iowa,  427;  Gilman  v.  Hill,  36  N.  H. 
311;  Stephenson  v.  Little,  10  Mich.  433;  Seavy  v.  Dearborn,  19  N.  H.  351; 
Ryder  v.  Hathaway,  21  Pick.  299. 

*  Stephenson  v.  Little,  10  Mich.  433;  Buckleys.  Buckley,  9  Nev.  379; 
Lupton  V.  White,  15  Ves.  432;  Forbes  v.  Shattuck,  22  Barb.  568;  Tripp  v. 
Riley,  15  Barb.  334. 

^  Story  on  Bailments,  this  title;  Wilson  v.  Nason,  4  Bosw.  (N.  Y.)  155; 
Ryder  v.  Hathaway,  21  Pick.  298. 


112  CONFUSION   OF    GOODS   OF    DIFFERENT    OWNERS. 

barley,  but  was  not  paid  for  according  to  contract;  held,  in 
an  action  for  conversion  that  the  plaintiff  had  a  right  to  the 
amount  of  his  grain  from  the  common  bulk.^ 

§  205.  The  same.  The  law  is  well  settled  that,  where  prop- 
erty cannot  be  identified  or  separated  so  as  to  be  seized,  replevin 
is  not  the  proper  remedy.  But  in  cases  like  the  preceding, 
where  the  goods  mixed  are  of  the  same  kind,  though  not 
capable  of  separation  by  identification,  yet  if  a  separation  and 
delivery  can  be  made  of  the  proper  quantity  without  injuri- 
ously affecting  the  remainder,  each  may  claim  his  share  from 
the  general  mass,  and  may  employ  this  action  to  secure  it.^ 

§  206.  The  same.  Rule  in  Illinois.  In  Illinois  the  rule 
seems  to  be  that  if  the  mixture  was  by  consent,  the  parties 
became  tenants  in  common,  and  neither  could  sustain  replevin. 
If  by  fraud  the  tenancy  in  common  does  not  arise,  and  the  inno- 
cent ma}''  sustain  replevin  for  the  whole.  A  warehouseman  re- 
ceived a  quantity  of  corn  in  store,  and  mixed  it  with  other  corn 
owned  by  himself  and  others,  with  the  consent  of  the  owner, 
and  with  the  understanding  that  a  like  quantity  and  quality 
should  be  delivered  to  him  out  of  the  common  mass,  the  court 
held  that  tliey  were  tenants  in  common,  and  neither  could  main- 
tain replevin  against  the  other.^  But  if  the  mixture  had  been 
made  by  the  wrongful  act  of  the  warehouseman,  without  the 
owner's  consent,  it  would  have  been  otherwise.* 

§  207.  The  rule  in  New  York.  In  New  York,  where  the 
wheat  of  A.  and  B.  was  mixed  in  a  bin  by  consent,  it  was 
held  to  create  a  tenancy  in  common.  ^ 

»  Morgan  v.  Gregg,  46  Barb.  183;  Bristol  v.  Burt,  7  John.  254. 

*  Kaufmann  v.  Scliilliug,  53  Mo.  219;  Inglebriglit  v.  Hammond,  19  Ohio, 
337;  Ryder  v.  Hathaway,  21  Pick.  305.  So  when  wood  of  two  persons  be- 
came mingled,  without  the  fault  of  either,  each  was  held  entitled  to  his 
share.  Moore  v.  Erie  R.  R.  Co.,  7  Lans.  (N.  Y.)  39.  Where  a  warehouse- 
man gave  a  receipt  for  wheat  that  was  never  delivered  to  him,  the  holder 
of  the  receipt  could  not  set  up  a  claim  to  a  portion  of  the  wheat  as  against 
owners  that  actually  put  in.    Jackson  v.  Hale,  14  How.  (U.  S )  525. 

3  Low  V.  Martin,  18  111.  286.     See  Parker  v.  Garrison,  61  111.  252. 

4  Warner  v.  Cushman,  31  111.  283. 

*  Nowlen  v.  Colt,  6  11111,461.  When  the  property  of  several  owners  is  in 
its  nature  severable  (like  corn,  wheat,  etc.,)  without  injury  to  the  mass  or 
to  the  interest  of  the  other  owners,  one  may  appropriate  his  share  if  it  can  be 


GENERAL  STATEMENT  OF  THE  KULE.  113 

§  208.  Where  an  oflBcer  is  induced  by  fraud  of  a  third  party 
to  levy  on  goods  not  the  property  of  the  defendant  in  the  pro- 
cess. The  defendant  in  execution  was  the  owner  of  a  piano 
which  was  left  witli  a  tliird  party,  who  caused  it  and  another  one 
resemblin<^  it  to  be  boxed  up  for  shipment.  The  officer  noti- 
fied the  bailee  that  he  held  an  execution,  and  desired  her  to 
point  out  the  piano  which  belonged  to  the  defendant  in  the 
process.  She,  however,  induced  him  to  levj'  on  the  one  be- 
lonj^ing  to  herself,  f^r  which  she  afterwards  brought  replevin, 
while  the  one  which  she  knew  the  officer  intended  to  levy  on 
was  shipped  away.  The  court  held  that  under  such  circum- 
stances she  was  estopped  from  asserting  title  to  the  piano 
which  had  been  seized  by  her  procurement. ^ 

§  209.  General  statement  of  the  rule  in  the  foregoing  cases. 
It  does  not  appear  that  any  general  rule  can  be  deduced  from 
the  cases  above  cited.  A  different  practice  has  grown  up  in 
different  States.  The  rule,  as  stated  in  Michigan,  and  a  simi- 
lar rule  applies  in  Wisconsin  and  Missouri,  seems  to  commend 
itself  not  only  as  being  fair,  but  as  certain  and  convenient  of 
application.  It  may  be  stated,  in  substance,  that  when  goods 
of  similar  description,  belonging  to  different  owners,  become 
mixed,  so  that  separation  becomes  impossible,  either  may  take 
his  share  or  proportion  from  the  common  mass,  and  may  if  he 
choose,  resort  to  replevin  for  the  purpose  of  asserting  his 
right.  "When  logs  are  mingled  in  the  river,  the  plaintiff  can 
only  pursue  such  as  he  can  identify;  buc  if  not  able  to  distin- 
guish his  own,  there  being  no  evidence  that  they  differed  in 
value  or  description  from  others,  with  which  they  were  mixed, 
he  may  maintain  replevin  for  a  quantity  out  of  the  common 
mass  equal  to  the  quantity  owned  by  hjm,^  Where  the  de- 
fendant cut  logs  on  the  land  of  another  by  mistake,  and  min- 
gled them  with  his  own,  so  that  they  could  not  be  distinguished, 
the  plaintiff  might  have  replevied  the  amount  belonging  to 

determined,  without  the  consent  of  the  others.  Forbes  v.  Shaltuck,  22 
Biirb.  568;  Tripp  v.  Riley,  15  lb.  334;  Morgan  v.  Gregg,  46  lb.  184.  So, 
also,  in  Minnesota.    Ames  v.  Miss.  Boom  Co.,  8  Minn.  478. 

»  Colwell  V.  Brower,  75  111.  522. 

'  Eldred  v.  The  Oconto  Co.,  33  Wis.  141.  See  also,  Kaufmann  v.  Schil- 
ling,  58  Mo.  218. 

b 


114  CONFUSION    OP    GOODS    OF   DIFFERENT    OWNEKS. 

liim  from  the  mass.i  Where  wheat  was  stored  in  a  warehouse, 
and  by  consent  of  the  owner  it  was  mixed  witli  that  of  tlie  ware- 
houseman, after  shipments  from  the  bulk,  until  an  amount  not 
more  than  that  stored  by  the  plaintiff  remained,  he  was  held 
the  absolute  owner;  and  a  sale  by  the  warehouseman  of  such 
remainder  was  a  wrongful  conversion,  and  tlie  owner  would 
liave  the  right  to  follow  it  as  long  as  he  could  identify  it.^  In 
Missouri  it  was  said,  when  the  goods  are  of  the  same  kind, 
and  not  capable  of  identification,  that  if  a  division  can  be 
made  of  equal  value,  as  in  the  ease  of  grain,  each  may  claim 
his  proportionate  part.^ 

§  210.  Change  of  form,  and  the  eflfect  of  such  change  on  the 
rights  of  the  parties.  It  frequently  happens  that  goods  in  the 
possession  of  a  defendant  have  undergone  a  material  change 
while  in  his  hands.  Cloth  may  have  been  made  into  garments, 
leather  into  shoes,  logs  sawed  into  boards,  or  wheat  ground 
into  flour;  or,  perhaps,  the  article  has  become  a  part  of  some- 
thing else,  as  hoop-poles  may  have  been  placed  upon  barrels, 
timber  converted  into  a  house  or  ship,  skins  into  parchments, 
on  which  valuable  deeds  have  been  written;  or  the  thing  may 
have  undergone  a  chemical  change,  which  has  completely 
destroyed  the  original,  as  corn  manufactured  into  whisky, 
grapes  into  wine,  apples  into  cider  or  vinegar.  And  the  ques- 
tion must  be  decided  what  eflfect  these  changes  have  had  on 
ownership,  or  the  right  to  recover  them  in  replevin. 

§  211.  Rule  of  the  civil  law.  Justinian  said,  ''  If  a  man 
make  wine  with  my  grapes,  oil  of  my  olives,  or  garments  with 
my  wool,  knowing  they  are  not  his  own,  he  shall  be  compelled, 
by  action,  to  produce  the  wine,  oil  or  garments."*  Pufendorflf 
states  the  law:  "  In  all  cases,  it  is  to  be  enquired  whether  the 
person  who  bestows  a  shape  on  another's  matter  doth  it  with 

'  Stearns  v.  Tlaymond,  26  "Wis.  74.  Such  is  also  the  law  in  Minnesota. 
Schulenberg  v.  Harriman,  21  Wall,  44. 

2  Young  V.  ]\Iiles,  23  Wis.  044;  Young  v.  Miles,  20  Wis.  615. 

^  Kaufraann  v.  Schilling,  58  Mo.  218;  Iiiglebrigiit  v.  Hammond,  19  Oliio, 
337;  Ryder  v.  Hathaway,  21  Pick.  305.  Compare  Kimberly  v.  Patchin,  19 
N.  Y.  330;  Scudder  v.  Worster,  11  Cush.  573;  Gardner  v.  Dutch,  9  Mass. 
427,  leading  cases  on  this  subject. 

*  Justinian  lust. ;  Digest,  Liber,  10  Tit.  4  Leg.  13. 


PKOPEKTY   TAKEN   BY   MISTAKE.  115 

an  honest  or  dishonest  design.  For  he  who  acts  thus  out  of  a 
knavish  principle  can  by  no  means  pretend  that  the  thing  be- 
longs to  him,  rather  than  to  the  owner  of  the  matter,  though 
all  the  former  reasons  should  occur;  that  is,  though  the  figure 
should  be  most  valuable,  though  the  matter  should  be,  as  it 
were,  lost  or  swallowed  up  in  the  work,  and  though  he  should 
be  in  very  great  want  of  what  he  has  thus  compacted.  For 
the  greater  part  of  the  two  doth  not  draw  it  itself;  the  less, 
barely  by  its  own  virtue,  or  on  its  own  account.  Hence,  if  a 
man,  out  of  willful  and  designed  fraud,  puts  a  new  shape  on  my 
matter,  that  he  may  by  this  means  rob  me  of  it,  he  neither 
gains  any  right  over  the  matter  by  his  act,  nor  can  he  demand 
of  me  a  reward  for  his  labor,  any  more  than  the  thief  who 
digs  through  my  walls  can  claim  to  be  paid  for  his  trouble  in 
making  a  new  door  to  my  house.  *  *  *  j^n  tj^jg  doth 
not  proceed  from  any  positive  constitutions,  but  from  the  very 
dictate  and  appointment  of  natural  reason.  Though  nature 
doth  not  determine  any  particular  penalty  in  the  case."' 

§  212.  Property  taken  by  mistake.  No  general  rule  can 
be  stated  which  will  be  applicable  in  all  tliese  cases;  each 
must  greatly  depend  on  its  own  peculiar  surroundings.  A 
rule  which  would  be  just  and  convenient  in  one  case,  might, 
in  another  very  similar  case,  be  exceedingly  unjust.  Thus,  if 
one  cut  trees  by  mistake,  on  another's  land,  and  convert  them 
into  logs,  the  owner  of  the  trees  might  recover  the  logs,  and 
the  person  who  had  cut  them  would  lose  his  labor.^  But  sup- 
pose the  trees  are  made  into  slabs,  and  the  slabs  into  costly 
furniture,  then  the  rule  might  be  extremely  unjust. 

§  213.  Change  of  form  does  not  change  the  title.  Where 
the  goods  can  be  identified,  owner  may  sustain  replevin.  The 
rule  may  be  stated  as  having  a  general  application,  that  it  is 
not  essential  the  property  should  remain  in  its  original  form, 
in  order  to  support  replevin,  provided  it  can  be  identified. ^ 
In  other  words,  a  change  of  form,  when  the  property  can  be 
identified,  is  not  a  bar  to  the  action  unless  the  change  has 

J  Pufendorff  Law  of  Nature,  Book  4,  Ch.  7,  §  10. 
2  Snyder  v.  Vaux,  2  llawle,  427. 
s  Wingate  v.  Smith,  20  Me.  287. 


116  CONFUSION    OF   GOODS   OF    DIFFERENT    OWNERS. 

been  wronglit  in  good  faitli  hy  an  innocent  party,  and  has 
materially  increased  the  vahie,  or  it  has  become  incorporated 
with,  and  forms  part  of,  another  thing,  which  is  the  principah^ 

§  214.  The  same.  Two  cherry  trees,  growing  on  the  nn- 
enclosed  wood-land  of  the  plaintiff,  were  cnt  by  some  one 
unknown;  defendant  hauled  the  logs  to  mill,  where  they  were 
sawed,  and  took  the  boards  to  his  house.  Tlie  court  sustained 
replevin  brought  hy  the  owner  of  the  land,  saying  that  what- 
ever alteration  of  form  property  may  assume,  the  owner  may 
reclaim  it,  if  he  can  establish  the  identity  of  the  original 
material. 2  In  Pennsylvania,  the  court  held  replevin  would  not 
lie  when  the  property  had  undergone  any  essential  change,  so 
that  its  identity  cannot  be  ascertained.  But  simple  change 
of  form  will  not  defeat  the  plaintiff's  right. ^ 

§  215.  Goods  taken  by  a  tMef  or  trespasser,  and  enhanced 
in  value  by  his  skill  or  labor.  It  is  an  elementary  principle  in 
the  law  of  all  civilized  communities  that  no  man  can  be  deprived 
of  his  property,  except  by  his  voluntary  act,  or  by  operation 
of  law.  The  thief  who  steals  a  chattel,  or  the  trespasser  who 
takes  it  by  force,  acquires  no  title  by  such  taking.  The  sub- 
sequent possession  by  the  thief  or  the  trepasseris  a  continuing 
wrong,  and  if,  during  its  continuance,  the  wrong-doer  enhances 
the  value  of  the  chattel,  by  labor  and  skill  bestowed  upon  it, 
the  manufactured  article  still  belongs  to  the  owner  of  the 
original  material,  and  he  may  retake  it,  or  recover  its 
increased  vahie.  Even  if  the  wrong-doer  sell  the  chattel  to  a 
purchaser  having  no  notice  of  the  fraud,  he  obtains  no  title, 
because  the  trespasser  had  none  to  give. 

§  216.  Rule  where  the  goods  come  to  the  hand  of  an  inno- 
cent purchaser.  But  if  a  chattel,  wrongfully  taken,  afterward 
comes  into  the  hands  of  an  innocent  holder,  who,  believing 
himself  to  be  the  owner,  converts  it  into  a  thing  of  different 
species,  so  that  its  identity  is  destroyed,  the  original  owner 
cannot  reclaim  it.     In  a  case  of  this  kind,  the  change  is  not 

1  Gray  v.  Parker,  38  ]\Io.  1G5. 

2  Davis  V.  Easley,  13  111.  198. 

8  Snyder  v.  Vanx,  2  Rawle,  (Pa.)  427;  Curtis  v.  Groat,  6  Johns.  168;  Bab- 
cock  V.  Gill,  10  John.  287 ;  Brown  v.  Sax,  7  Cow.  95. 


OWNER    SHOULD   RECLAIM    HIS   TKOPERTY.  117 

an  intentional  wrono'  to  the  orio-inal  owner.  It  is  therefore 
regarded  as  a  destruction  or  consumption  of  the  original 
material,  and  the  true  owner  is  not  in  such  case  permitted  to 
trace  its  identity  into  a  manufactured  article,  for  the  purpose 
of  appropriating  to  his  own  use  the  labor  and  skill  of  the 
innocent  party  who  wrought  the  change;  but  he  is  to  put  his 
action  for  damages  as  for  a  thing  converted,  and  he  may  recover 
its  value  as  it  was  when  its  conversion  or  consumption  took 
place.  1  It  will  be  seen  that  the  question  is  not  whether  a 
defendant  can  acquire  property  by  mixing  it  with  other 
property,  or  by  destroying  its  identity,  but  whether  the 
plaintiff  can  separate  his  property  after  such  change.^ 

§  217.  Owner  should  reclaim  his  property  before  its  value 
is  greatly  enhanced.  The  rule  in  Wisconsin  seems  to  commend 
itself,  as  well  for  its  plainness  as  for  the  manifest  justice  which 
it  seems  to  deal  out  to  all  parties.  It  is  there  held  that  the 
owner  of  chattels  does  not  lose  his  property  by  mere  change 
of  form,  at  the  hands  of  another;  but  he  should  reclaim  it 
before  the  new  possessor  has  greatly  increased  its  value  by 
the  bestowal  of  his  skill  and  labor.  And,  in  event  of  his 
failure  to  do  so,  he  should  be  restricted  in  his  recovery  to  the 
amount  of  damages  he  has  actually  sustained,  unless  the 
taking  was  accompanied  with  some  circumstances  of  malice 
or  insult  that  might  make  it  proper  to  inflict  exemplary 
damages.  This  rule,  while  it  protects  the  owner  fully,  will  be 
easy  of  application,  and  do  justice  to  both  parties,  when  such 
a  result  is   attainable.^     In   Michigan,  a   somewhat   similar 

'  Hiscox  V.  Greenwood,  4  Esp.  174;  "Wetherbee  v.  Green,  22  Mich.  311 ; 
Betts  V.  Lee,  5  Johns.  348;  Curtis  v.  Groat,  6  Johns.  1G8;  Chandler  v.  Edsou, 
9  Johns.  362;  Hyde  v.  Cookson,  21  Barb.  92;  Baker  v.  "Wheeler,  8  Wend. 
508;  Snyder  v.  Vaux,  2  Rawle,  427;  Riddle  v.  Driver,  12  Ala.  59";  Ryder  v. 
Hathaway,  21  Pick.  305;  6eard  v.  James,  49  Miss.  237;  Martin  v.  Porter, 
5  3Iees.  &  W.  352 ;  Rightmyer  v.  Raymond,  12  Wend.  51 ;  Baker  v.  Wheeler, 
8  Wend.  505;  Wild  v.  Holt,  9  Mees.  &  W.  672;  Harris  v.  Newman,  5  How. 
(:Mis3.)  658;  Putnam  v.  Gushing,  10  Gray,  (Mass.)  334;  Mallory  v.  Willis,  4 
Comst.  76.    See  Linch  v.  W^elsh,  3  Pa.  St.  294. 

2  Ames  V.  Miss.  Boom  Co.,  8  Minn.  470. 

3  Wej-mouth  v.  C.  «&  N.  W.  Ry.  Co,  17  Wis.  550;  Single  v.  Schneider.  30 
Wis.  572;  Hungerford  v.  Redford,  29  Wis.  345.  Consult  Austin  v.  Craven, 
4  Taunt.  644. 


118  CONFUSION    OF    GOODS   OF   DIFFERENT   OWNERS. 

doctrine  prevails.  "When  timber  worth  twenty-five  doUars 
had,  by  one  in  the  exercise  of  a  supposed  right,  in  good  faith, 
been  converted  into  hoops  worth  seven  hundred  dollars,  it  was 
held  that  the  title  passed  to  the  party  who  had  in  good  faith 
expended  his  labor,  and  the  owner  of  the  timber  in  such  case 
could  not  sustain  replevin  for  the  hoops. ^  In  Pennsylvania, 
the  plaintiff  sought  to  recover,  in  trover,  the  value  of  coal  dug 
out  of  his  mine  by  mistake,  and  was  allowed  only  the  value  of 
the  coal  before  it  was  mined.  The  court  says:  "  It  is  apparent 
that  any  other  rule  would  transfer  to  the  plaintiff  all  the 
defendant's  labor  in  mining  the  coal,  and  thus  give  her  much 
more  than  compensation  for  the  injury  done."^ 

§  218.  Where  the  taking  was  wrongful,  the  taker  cannot 
change  the  title  by  any  change  in  the  property.  In  New 
York,  in  a  case  in  trover,  where  the  defendant  wrono^fullv  cut 
logs  on  the  plaintiff's  land  and  converted  them  into  lumber, 
the  court  held_,  that  the  property  was  not  changed,  and  laid 
down  the  rule,  that  in  cases  of  wrongful  taking,  the  defendant 
cannot  by  any  act  of  his,  change  the  title  to  the  property.^ 
Probably  the  strongest  case  in  the  books  will  be  found  in  New 
York.  It  was  where  corn  was  taken  by  a  willful  tres])asser 
and  converted  into  whisky.  Tlie  court  held,  that  the  change 
of  form  had  not  changed  the  ownership,  and  that  the  whisky 
belonged  to  the  owner  of  the  corn,  and  was  liable  to  be  seized 
on  execution  for  his  debts.'*     This  case  gains  importance  from 

1  Wetherbee  v.  Green,  22  Mich.  311. 

^  Forsyth  ■».  Wells,  41  Pa.  St.  291.  Contra,  see  Robertson  v.  Jones,  71  III. 
405.  If  a  man  take  my  garment  and  embroider  it  with  silk,  I  may  take 
back  the  garment;  but  if  I  take  the  silk  from  you  and  embroider  or  face 
my  garment,  you  shall  not  take  my  garment  for  your  silk,  which  is  in  it, 
but  are  put  to  your  action  for  my  taking  the  silk  from  you.  Anon  Pop- 
ham,  38. 

3  Brown  v.  Sax,  7  Cow.  95.  See,  also,  Hyde  v.  Cookson,  21  Barb.  92; 
Martin  v.  Porter,  5  Mees.  &  W.  3')2 ;  Betts  v.  Lee,  5  Johns.  348 ;  Rightmyer 
V.  Raymond,  12  Wend.  51;  Wild  v.  Holt,  9  Mees.  &  W.  672;  Curtis  v. 
Groat,  6  Johns.  163;  Babcock  v.  Gill,  10  John.  287;  Ricketts  v.  Dorrel,  55 
Ind.  470.  So,  when  wool  was  taken  and  made  into  co-its.  Curtis  v.  Groat, 
6  John.  168. 

*  Silsbury  v.  McCoon,  3  Comst.  380. 


PKOPEKTY   ANNEXED   TO    KEAL   ESTATE.  119 

the  fact  that  it  had  twice  before  been  considered  in  the 
supreme  court  and  a  contrary  conclusion  reached.' 

§  219.  Measure  of  damages  in  such  cases.  The  rule  as 
before  stated  does  not  apply  to  cases  of  willful  taking.  A 
trespasser  cannot  change  the  property  by  changing  the  form, 
so  long  as  the  identity  of  the  article  can  be  shown.  If  the 
labor  of  the  defendant  has  added  to  the  value,  it  is  in  his 
power  to  relinquish  the  increased  value  or  to  keep  it  himself. 
If  he  claims  the  property,  it  is,  under  the  statutes  in  many 
States,  in  his  power  to  retain  it  by  giving  bond  to  the  sheriff; 
and  the  effect  of  a  verdict  for  plaintiff,  for  value,  is  a  transfer 
of  the  title  to  the  defendant.  The  rule  of  damages,  if  the 
trespass  was  by  mistake,  would  be  the  value  before  the  defend- 
ant had,  by  bestowal  of  his  own  labor,  increased  it.  If  the 
trespass  was  willful,  the  damages  would  be  the  value  at  the 
time  of  bringing  suit.^ 

§  220.  Change  of  form  by  agreement  does  not  affect  the 
rights  of  the  parties.  Where  a  levy  was  made  upon  gold 
coin,  which  for  convenience  was  converted  into  large  bills,  and 
the  bills  were  then  replevied  by  a  stranger  to  the  execution, 
Keld^  that  the  substitution  of  the  bills  by  agreement  would 
not  defeat  the  action. ^ 

§  221.  Property  taken  and  annexed  to  real  estate  or  other 
thing  which  forms  the  principal.  If  property  taken,  be  an- 
nexed to  and  made  part  of  some  other  thing  which  forms  the 
principal,  the  owner  cannot,  as  a  rule,  sustain  replevin,  but 
must  resort  to  his  action  for  damages.  When  timber  has 
been  converted  into  boards  and  they  have  been  incorporated 
with  others  into  a  house,  the  chattel  is  regarded  as  a  part  of 
the  building,  and  replevin  does  not  lie.*     It  will  be  seen  that 

1  Silsbury  n.  McCoon,  3  Comst.  380,  and  S.  C,  4  Denio,  332;  S.  C,  6  Hill, 
426.  See,  also,  Gray  «.  Parker,  38  Mo.  160.  bee  the  able  and  exhaustive 
argument  of  Mr.  Hill,  in  note  to  3  Comst.  380. 

2  Herdic  v.  Young,  55  Pa.  St.  178;  Young  n.  Herdic,  55  Pa.  St.  172;  Sny. 
der  n.  Vaux,  2  Rawle,  427;  Heard  «.  James,  49  Miss.  236;  Bull  «.  Griswold, 
19  111.  681. 

8  St.  L.  A.  &  C.  R.  R.  v.  Castello,  28  Mo.  380.  For  a  case  of  trover  for 
the  produce  of  stolen  notes,  see  Golightly  v.  Reynolds.  Lofft.  88. 

*  Snyder  «.  Vaux,  2  Rawle,  423;  Ricketts  v.  Dorrel,  55  Ind.  470;  Betts  v. 
Lag,  5  Johns.  348 ;  Brown  v.  Sax,  7  Cow.  95 ;  2  Bla.  Com.  404. 


120  CONFUSION    OF   GOODS    OF   DIFFERENT   OWNERS. 

these  rules  are  for  the  most  part  arbitrary,  differing  widely  in 
eases  which  are  very  similar.  And  the  difficulty  of  deducing 
any  rule  applicable  in  all  cases  is  apparent.  It  should  in  each 
case  be  considered  whether  the  taking  and  subsequent  change 
of  form  was  made  by  mistake,  wliile  in  the  exercise  of  a  sup- 
posed right,  or  was  in  willful  disregard  of  the  rights  of  the 
owner.  In  the  former  case,  where  the  property  had  under- 
gone a  material  change,  largely  increasing  its  value,  the  rights 
of  tlie  party  who  had  in  good  faith  bestowed  such  increase  of 
value  must  be  respected.  But  when  the  taking  and  subse- 
quent change  was  in  willful  disregard  of  the  rights  of  the 
plaintiff,  it  is  eminently  proper  that  the  taker  should  not  be 
permitted  to  derive  any  profit  from  his  wrongful  act,  and  that 
the  owner  be  allowed  to  recover  his  goods,  even  if  it  result  in 
taking  with  them  some  of  the  fruits  of  the  wrong  doer's  labor. 
§  222.  Description  to  be  employed  where  the  property  has 
undergone  a  change.  When  the  suit  is  brouglit  for  property 
which  has  undergone  a  change  of  form,  the  writ  and  proceed- 
ing should  describe  it  in  the  form  in  which  it  exists  at  the 
time  when  the  suit  is  begun. i  And  the  ownership  of  the 
original  materials  and  proof  of  identity  may  be  given  in 
evidence  upon  the  trial. 

»  Wini^ate  v.  Smith,  20  Me.  287. 


MORTGAGEOR   HAS   AN   INTEREST. 


121 


CHAPTER    IX. 


CHATTEL  MORTGAGE. 


Section. 

Rights  of  a  mortgagee  in  a 
chattel  mortgage         .        .  223  a 

The  mortgageor  has  an  inter- 
est which  may  be  seized  and 


Section. 
sold  on  execution       .        .  222  b 
Rights  of  mortgagee  against 
third  parlies        .        .        .223 


§  222  a.  Rights  of  a  mortgagee  in  a  chattel  mortgage. 
Upon  a  failure  of  the  mortgageor  of  chattels  to  perform  tlio 
conditions,  the  legal  title  to  the  property  conveyed  in  a  chattel 
mortgage  of  the  usual  form  becomes  vested  absolutely  in  the 
mortgagee,^  and  he  may  recover  the  property  in  replevin. 
"Where  there  are  several  notes  he  does  not  lose  his  lien  upon 
the  non-payment  of  the  first  note  becoming  due,  but  may  wait 
until  the  last  note  matures,  and  then  take  the  property.^ 

§  232  h.  The  mortgageor  has  an  interest  which  may  be  seized 
and  sold  on  execution.  "Where  a  mortgageor  is  in  possession 
of  mortgaged  chattels  under  a  clause  in  the  mortgage  which  gives 
him  the  right  to  retain  possession  until  the  mortgage  is  due,  he 
has  an  interest  which  but  for  the  clause  giving  the  mortgagee,  (in 
case  he  feels  himself  insecure,)  a  right  to  take  possession,  might 
be  seized  and  sold  on  execution  ao^ainst  him.^  When  such  o-oods 
are  seized  and  the  debt  matures  before  the  sale,  or  where  the 
mortgage  contains  the  insecurity  clause  above  referred  to,  the 


I  Brown  v.  Bement,  8  Johns.  96;  Saxton  v.  Williams,  15  "Wis.  292;  Ackley 
©.  Finch,  7  Cow.  290;  Butler  v.  Miller,  1  Comst.  (N.  Y.)  49G;  Langdoa  v. 
Bucl,  9  Wend.  80;  Livor  v.  Orser,  5  Duer,  501 ;  Patchin  v.  Pierce.  12  Wend. 
61;  Heyland  v.  Badger,  35  Cal.  411;  Brookover  v.  Esterly,  12  Kan.  149. 

J  Cleaves  v.  Herbert,  61  111.  127.     See  Reese  v.  Mitchell,  41  111.  3G5. 

»  Saxton  V.  Williams,  15  Wis.  292;  Redman  v.  Hendricks,  1  Sandf.  (N.  Y.) 
32;  Prior  v.  White,  12  111.  2G1;  Schrader  v.  Wolflin,  21  Ind.  238;  MaUison 
t.  Baucus,  1  Comst.  (N,  Y.)  295 ;  Cotton  v.  Watkins,  6  Wis.  629. 


122  CHATTEL   ilOETGAGE. 

mortgagee  may  demand  tlie  goods,  and  on  refusal  may  sustain 
replevin  for  tliem.i  In  such  cases  the  possession  of  the  mort- 
gagee can  only  be  asserted  in  compliance  with  the  terms  of 
the  mortgage.  The  distinction  between  a  chattel  mortgage 
and  a  pledge  is  clearly  stated  in  Heyland  v.  Badger,  35  Cal. 
409.  The  mortgage  passes  the  property  to  the  mortgagee, 
subject  to  be  redeemed  according  to  the  terms  of  the  contract, 
and  if  not  redeemed  the  property  becomes  absolute  in  the 
mortgagee,  who  may  sustain  replevin  for  the  goods,  or  trover 
for  their  value.  The  mortgageor  could  not  maintain  trover 
against  the  mortgagee  for  refusing  to  deliver  the  goods,  or  for 
selling  them,  for  the  title  at  law  is  in  the  mortgagee  and  trover 
depends  on  title,  general  or  special,  to  support  it,  and  the 
mortgageor  has  no  title  —  only  an  equitable  right  to  redeem 
the  property  by  payment  of  the  amount  due  on  the  mortgage.^ 
§  223.  Eights  of  mortgagee  against  third  parties.  Where  a 
chattel  mortgage  is  properly  executed  and  recorded,  so  as  to 
be  a  valid  transfer  of  the  property  in  the  county  where  the 
property  is  situated,  and  where  the  parties  and  property  are 
bound,  the  subsequent  removal  of  the  property  by  the  mort- 
irao-eor  to  another  county  or  State  in  contravention  of  the  terms 
of  the  mortgage,  will  not  deprive  the  mortgagee  of  his  right 
to  the  property.  He  maj'^  follow  it  and  assert  his  title  in  an 
action  of  replevin  against  the  mortgageor  so  removing  it,  and 
the  authorities  are  tolerably  uniform  that  a  purchaser  of  such 
property  in  a  foreign  county  or  State,  without  notice  and  for 
value,  cannot  resist  the  claim  of  the  mortgagee.  The  mortgage 
being  an  absolute  transfer  of  the  property  to  the  mortgagee 

'  Simmons  v.  Jenkins,  76  111.  481 ;  Carty  v.  Fenstemaker,  14  Ohio  St.  457; 
Mclsaacs  v.  Ilobbs,  8  Dana,  (Ky.)  2G8 ;  Putnam  v.  Gushing,  10  Gray,  (Mass.) 
334;  Bates  v.  Wilbur,  10  Wis.  415;  Randall  v.  Gook,  17  Wend.  55;  New- 
man v.  Tymeson,  13  Wis.  172;  Bailey  «.  Burton,  8  Wend.  339;  Eggleston  v. 
Mundy,  4  Gibbs,  (Mich.)  295;  Beach  v.  Derby,  19  111.  622;  Frisby  v.  Lang- 
worthy,  11  Wis.  379. 

2  Gonsult  White  ».  Phelps,  12  N.  H.  385 ;  Burdick  v.  McVanner,  2  Denio, 
171 ;  Holmes  v.  Bell,  3  Gush.  323:  Tannahill  v.  Tuttle,  3  Mich.  110,  citing 
many  cases.  Wood  v.  Dudley,  8  Vt.  430;  Brown  v.  Bement,  8  Johns.  96; 
Tabot  V.  De  Forest,  3  G.  Greene,  (Iowa,)  586 ;  Dewey  v.  Bowman,  8  Gal.  150; 
Ferguson  «.  Thomas,  26  Me.  499.  See,  in  this  connection,  Moblej--  v.  Letts, 
61  Ind.  11 ;  Hunt  v.  Bullock,  23  111.  325 ;  Titus  v.  Mabee,  25  111.  257. 


lUGUTS    OF   MOilTGAGEE.  123 

with  a  statutory  permission  to  the  mortgageor  to  retain  pos- 
session for  a  limited  time,  the  bare  possession  does  not  confer 
title.  Sale  by  the  mortgageor  under  such  circumstances  is,  in 
its  most  favorable  light,  looked  upon  as  a  sale  by  a  bailee, 
without  right,  and  such  sale  cannot  affect  the  title  of  the 
morto:ao;ee.^ 

>  Welch  V.  Sackett,  12  Wis.  243 ;  Smith  v.  McLean,  24  Iowa,  323 ;  Cotton  v. 
Watkins,  6  Wis.  629;  Blystone  v.  Burgett,  10  Ind.  28;  Pickard  v.  Low,  15 
Me.  48 ;  Offut  v.  Flagg,  10  N.  H.  46.  See,  also,  Martin  v.  Hill,  12  Barb.  633 ; 
Brackett  v.  Ballard,  13  Met.  309;  Ryan  v.  Clanton,  3  Strob.  (S.  C.)  413;  Bar. 
ker  V.  Stacy,  25  Miss.  471 ;  Jones  v.  Taylor,  30  Vt.  43;  Loeschman  v.  Machiu, 
2  Stark.  311. 


124 


PKOPEKTY   SEIZED   FOK   A    TAX. 


CHAPTER  X. 

PROPERTY  SEIZED  FOR  A  TAX. 


*  Section. 

Property  seized  for  the  payment 
of  atax  not  repleviable  .        .  324 

Irregularity  in  issuing  the  war- 
rant does  not  change  the  rule  225 

Nor  the  fact  that  no  taxes  are 
due  from  the  party  whose 
goods  are  seized      .        .        .  226 

Prohibition  extends  to  goods 
seized  for  tax  due  the  United 
States  or  an  incorporated  vil- 
lage   227 

The  usual  form  of  the  prohibi- 
tion is  a  requirement  in  the 
affidavit 238 

The  jealousy  with  which  the 
courts  look  upon  attempts  to 
evade  this  requirement  .        .  229 

Questions  of  double  assessment 
cannot  be  tried  in  this  action  230 

Property  seized  for  the  payment 
of  a  tax  due  from  another  per- 
son   231 

The  same 233 

The  prohibition  of  this  remedy 
does  not  afiect  the  rights  of 


Section, 
the  party  to  employ  any  other 
remedy 

The  action  permitted  where  the 
plaintiff  does  not  ask.  deliv- 
ery of  the  property 

The  prohibition  does  not  extend 
to  a  purchaser  at  tax  sale 

The  bare  assertion  of  the  defend- 
ant  tliat  the  goods  are  seized 
for  tax,  not  sufficient 

The  warrant  must  be  regular  on 
its  face,  and  purport  to  be 
issued  by  competent  author- 
ity      

It  must  appear  to  be  for  a  tax 
which,  by  legal  possibility, 
may  be  valid  .... 

The  seizure  must  be  by  an  offi- 
cer     

Wliere  an  officer  goes  out  of  his 
bailiwick         .... 

The  proliibition  extends  to 
goods  seized  for  payment  of 
a  fine 

Replevin  against  a  purchaser   . 


233 


234 


235 


236 


237 


233 


239 


240 


241 
243 


§  224.  Property  seized  for  the  payment  of  a  tax  not  replevi- 
able. There  is  a  provision  common  to  the  laws  of  all  the  States, 
that  goods  seized  on  legal  process  issued  for  the  collection  of  a 
tax  cannot  be  retaken  from  the  officer  bj  a  writ  of  replevin. ^ 


'  People  V.  Albany  C.  P.,  7  Wend.  484 ;  Bilbo  v.  Henderson,  21  Iowa,  56 ; 
Macklot  V.  City  of  Davenport,  17  Iowa,  379;  Hcrshey  v.  Fry,  1  Iowa,  593; 
Vocht  V.  Reed,  70  111.  491 ;  LeRoy  v.  East  Sag.  Ry.  Co.,  18  Mich.  233;  Mc 


lEREGULAEITT   IN    ISSUING    THE   WARRANT.  125 

The  reason  for  this  rule  is  found  in  the  necessity  for  protect- 
ing the  public  revenue,  and  to  prevent  the  delay  in  its  collec- 
tions which  might  result  if  property  seized  by  an  officer  upon 
a  warrant  for  the  collection  of  taxes  were  permitted  to  be  taken 
from  his  hands  pending  an  inquiry  into  the  propriety  of  the 
seizure.  While  other  and  ample  means  of  redress  are  provided 
for  the  owner,  in  case  his  property  is  wrongfully  distrained, 
this  remedy  is  forbidden.  The  prompt  collection  of  the  pub- 
lic revenue  is  regarded  as  a  standing  and  public  exigency,  to 
which  private  rights  must  yield  or  be  abridged ;  at  least,  of  this 
action.  The  law  therefore  forbids  replevin  of  goods  so  seized, 
and  remits  the  party  to  his  action  for  trespass  or  trover,  or 
such  other  pro])er  action  as  he  may  elect'  "Disastrous  in- 
deed," says  Justice  Breese,  "  would  be  the  consequences  to  the 
public,  was  it  allowed  to  every  taxable  inhabitant  who  may 
have  conceived  a  notion  that  a  law  of  general  application  im- 
posing taxes  is  void,  and  therefore  he  shall  be  permitted  to 
arrest  its  operation,  and  thus  break  down  the  financial  system 
of  the  State.  If  one  may  do  it,  the  whole  community  may, 
and  ruin  and  disgrace  would  inevitably  follow  the  extinction 
of  the  State  credit  thus  brought  about.  The  law  forbids  the 
consideration  of  the  question  of  the  legality  of  a  tax,  assess- 
ment or  fine  levied  under  any  law  standing  on  the  statute  book 
of  this  State,  by  means  of  the  action  of  replevin,  and  for  the 
reasons  we  have  given. "^ 

§  225.  Irregularity  in  issuing  the  warrant  does  not  change 
the  rule.  Replevin  will  not  lie  for  property  taken  by  virtue  of 
a  warrant  for  the  collection  of  a  tax,  even  though  the  warrant 
may  have  issued  erroneously  or  irregularly,  or  contrary  to  law. 
If  on  its  face  it  gives  the  officer  authority  to  collect  a  tax,  and  to 
seize  property  for  that  purpose,  replevin  for  property  so  seized 
cannot  be  sustained  in  this  action.  It  is  not  that  greater 
license  is  given  to  an  officer  collecting  a  tax  than  to  one  exe- 

Claugliry  v.  Cratzenberg,  39  111.  122;  Bringliurst  v.  Pollard,  6  Porter,  (Ind.) 
452;  Buell  v.  Ball,  20  Iowa,  282;  Hudler -u.  Golden,  3G  N.  Y.  440;  Stoddard 
V.  Gilmaa,  22  Vt.  570;  Troy  &  Lans.  R.  R.  v.  Kane,  72  N.  Y.  614. 

>  Stiles  V.  Griffith,  3  Yeates,  (Pa.)  82;  Heagle  o.  Wheeland,  64  111.  423; 
Le  Roy  V.  East  Sag.  Ry.  Co.,  18  Mich.  233. 

«  McClaughry  v.  Cratzenberg,  39  111.  123. 


126  PEOPERTY    SEIZED    FOR    A    TAX. 

cuting  other  process.  An  irregular  warrant  or  a  void  levy  of 
a  tax  warrant  is  no  protection  to  the  officer;  but  the  injured 
party  cannot  employ  replevin;  he  cannot  begin  a  contest  over 
the  regularity  of  the  proceeding  by  withdrawing  the  property 
from  the  custody  of  the  law.^ 

§  226.  Nor  the  fact  that  no  taxes  are  due  from  the  party 
whose  goods  are  seized.  When  a  defendant  justified  under  a 
tax  warrant,  a  replication  that  there  were  no  taxes  due  from 
the  plaintiff  to  the  town  would  in  effect  bring  up  the  entire 
question  of  the  legality  of  the  tax,  and  such  a  replication  would 
be  bad. 3 

§  227.  Prohibition  extends  to  goods  seized  for  tax  due  the 
United  States  or  an  incorporated  village.  The  prohibition  is 
not  confined  to  goods  seized  for  the  payment  of  taxes  due  the 
State,  but  extends  to  and  embraces  goods  which  have  been 
seized  by  virtue  of  a  warrant  for  the  collection  of  taxes  levied 
under  a  law  of  Congress, ^  or  under  the  internal  revenue  laws 
of  the  United  States.*  So,  where  the  seizure  was  for  taxes 
levied  by  virtue  of  a  process  for  the  collection  of  a  tax  due 
an  incorporated  city,  town  or  village,  levied  under  its  cor- 
porate powers,  the  same  rule  applies,  and  prohibits  replevin 
of  the  property  from  tlie  officer  seizing  it.  In  this  case  the 
municipal  authorities  are  regarded  as  acting  under  a  law  of 
the  State,  and  all  the  reasons  which  prohibit  the  seizure  in  tlie 
case  of  the  State  apply  when  tlie  tax  is  for  the  benefit  of  a 
local  municipal  corporation,  to  the  same  extent  and  in  the 
same  manner.  In  all  these  cases,  therefore,  when  the  seizure 
has  been  made  by  an  officer  acting  under  the  authority  of  a 
tax  warrant  valid  on  its  face,  the  property  seized  is  exempt 
from  the  operation  of  the  writ  of  replevin. ^ 

'  People  V.  Albany  Com.  Pleas,  7  Wend.  485 ;  Hudler  v.  Golden,  3G  N.  Y. 
446;  Buell  v.  Schaale,  39  Iowa,  293;  Niagara  Elev.  Co.  ■».  McNamara,  2 
Hun,  (N.  y.)  416. 

*  Mt.  Carbon  Coal  Co.  v.  Andrews,  53  111.  177. 
»  O'Reilly  v  Good,  42  Barb.  521. 

*  Delaware  R.  R.  Co.  v.  Prettyman,  7  Int.  Rev.  Rec.  101 ;  Pullen  v.  Ken- 
singer,  11  Int.  Rev.  Rec.  197;  Brice  v.  Elliot,  8  Legal  News,  323. 

^  Mt.  Carbon  Coal  Co.  t).  Andrews,  53  111.183;  People  o.  Albany  Com. 
Plea,  7  Wend,  485 ;  Savacool  v.  Boughton,  5  Wend.  178.    Due  pi'ocess  of  law 


USUAL   FOKM   OF   THE    PROHIBITION.  127 

§  22S.  The  usual  form  of  the  prohibition  is  a  requirement  in 
the  aflBdavit.  This  exemption,  as  was  stated,  is  a  statutory 
provision  common  to  all  the  States  where  this  action  is  in  use; 
and  tlioiigh  the  common  law  was  not  unlike  the  statute  on 
this  subject,  local  statutes  have  defined  and  emphasized  the 
prohibition,  and  control  the  practice  in  all  cases.  The  usual 
form  of  the  statutory  prohibition  is  a  provision  that  the  writ 
shall  not  issue  for  the  delivery  of  the  property  in  any  case, 
unless  the  plaintiff  shall  first  file  an  affidavit  that  the  goods  for 
which  the  writ  is  about  to  be  sued  out  have  not  been  taken 
for  any  tax,  etc.,  levied  by  virtue  of  any  law  of  the  State.  ^ 
This  provision  is  imperative,  and  any  attempt  to  evade  its  let- 
ter or  spirit  will  be  regarded  as  an  attempt  to  evade  one  of  the 
vital  prerequisites  to  the  issuing  of  the  writ.  When  the  plain- 
tiff filed  an  affidavit  that  "  the  property  had  not  been  taken 
for  any  legal  tax,  as  this  affiant  is  informed  and  believes,"  the 
court  said  the  departure  from  the  requirements  of  the  statute 
was  very  palpable,  and  upon  the  plaintiff  desiring  leave  to 
amend  the  affidavit,  the  court  refused  permission  and  quashed 
the  writ,  holding  that  it  was  informed  of  the  design  of  the 
plaintiff  to  test  the  constitutionality  of  the  law  under  which 
the  tax  was  assessed.  "  The  amended  affidavit,"  said  the  court, 
"if  filed,  and  trial  had,  would  have  presented  the  same  ques- 
tion." The  court  would  have  been  compelled  to  dismiss  tlie 
suit  the  very  moment  it  was  shown  that  a  question  of  taxa- 
tion was  involved,  and  the  constitutionality  of  the  law  impos- 
ing the  tax  was  the  hinge  on  which  the  case  turned. ^  Where 
the  defendant  in  replevin  pleaded  formally  that  the  property  had 
been  seized  fur  a  tax  due  the  town  of  Murphreysboro',  setting 
up,  also,  his  autiiority  as  collector  of  taxes,  and  the  plaintiff 
replied,  1st,  that  defendant  was  not  duly  or  legally  appointed 
collector,  etc.  2d.  That  there  was  no  such  corporation  or  city. 
3d.  Ko  valid  ordinance  in  force  authorizing  defendant  to  dis- 

in  the  assessment  of  taxes  does  not  require  a  judicial  proceedin<^.  McMil- 
len  e.  Anderson,  U.  S.  Sup.  Ct.  Oct  1877;  Cent.  Law  Journal,  Nov.  23, 
1877,  p.  445;  Pullen  t.  Kensincer,  11  Int.  Rev.  Rec.  197. 

'  See  Bringliurst  v.  Pollard,  6  Ind.  452. 

*  McClaugliry  -o.  Cratzenberg,  39  111.  123.  See  McPlielomy  v.  Solomon, 
15  Ind.  189. 


128  PROPEKTY    SEIZED   FOK   A    TAX. 

train,  etc.  4tli.  No  tax  due  from  plaintiff.  5th.  The  goods 
not  legally  distrainable.  To  these  replications  a  demurrer  was 
interposed  and  sustained,  and  an  appeal  taken  to  the  supreme 
court,  where  the  decision  was  affirmed,  the  court  holding, 
1st.  Replication  was  no  bar,  because  it  failed  to  deny  that 
the  defendant  was  collector  de  facto  or  de  jure.  The  ques- 
tion whether  he  was  lawfully  in  office  could  not  be  tried 
in  this  action;  hence,  the  replication  tendered  a  collateral 
issue.  2d.  The  question  , whether  the  town  of  Murphreysboro' 
was  legally  incorporated  could  not  be  tried  in  this  proceeding. 
Ilad  the  replication  been  that  the  town  had  never  been  and 
was  not  then  acting  as  a  corporation,  and  the  defendant  acted 
without  color  of  right,  the  question  would  have  been  different, 
and  the  replication  might  have  been  sufficient.  "The  fourth 
replication  sought  to  present  the  question  whether  there  was 
any  tax  due  the  town.  It  would,  as  pleaded,  have  opened  the 
entire  question  whether  the  tax  was  legally  levied,  and  might 
have  led  to  an  investigation  whether  the  town  had  observed 
the  requirements  of  its  charter  and  ordinance  in  levying  the 
tax,  and  led  to  the  very  controversy  which  the  General  Assem- 
bly intended  should  not  be  litigated  in  this  form  of  action." 
The  questions  of  the  legality  of  the  levy,  or  of  the  observance 
or  neglect  of  any  of  the  formal  requirements  of  the  levy, 
cannot  be  inquired  into  in  this  action.  ^ 

§  229.  The  jealousy  with  which  the  courts  look  upon  at- 
tempts to  evade  this  requirement.  The  courts  look  with 
extreme  jealousy  upon  all  the  provisions  of  the  law  upon  this 
subject,  and  any  attempt  to  evade  them,  or  by  indirection,  to 
use  this  writ  for  the  purpose  of  defeating  or  delaying  the  col- 
lection of  a  tax,  will  be  stranded  at  the  threshhold.  Where 
the  affidavit  stated  that  the  property  had  not  been  taken  "  in 
execution''''  for  any  tax  assessment  or  fine,  the  court  said: 
"  The  statute  required  an  affidavit  that  the  property  had  not 
been  taken  for  any  tax,  etc.  The  plaintiff  has  sworn  that  it 
had  not  been  taken  by  virtue  of  a  particular  process,  that  is, 
the  process  of  execution ;  but  this  may  be  true,  and  still  the 

'  Mt.  Carbon  C.  &  R.  R.  Co.  v.  Andrews,  53  111.  184. 


DUE   FROM    ANOTUER   PERSON.  129 

property  may  liave  been  distrained  for  taxes,"  and  the  affidavit 
was  held  insufficient. ^ 

§  230.  Questions  of  double  assessment  cannot  be  tried  in 
this  action.  Questions  of  erroneous,  illegal,  or  double  assess- 
ment, cannot  be  tried  in  this  action.  If  error  in  the  assessment, 
or  mistake  or  illegality  in  the  levy,  could  be  tried,  very  few 
cases  would  be  found  to  lack  these  elements,  or  some  of  them. 
Where  a  collector  distrained  for  a  tax  assessed  against  the 
owner  of  property,  he  cannot  replevy  it  by  showing  that  it 
was,  when  assessed,  in  the  hands  of  an  agent,  and  had  been 
assessed  as  belonging  to  the  latter,  and  the  tax  paid  on  such 
assessment.^ 

§  231.  Property  seized  for  the  payment  of  a  tax  due  from 
another  person.  When  a  party  has  his  property  seized  for  a 
tax  due  from  another  person,  with  whom  he  is  in  no  way  con- 
nected, and  for  which  he  is  in  no  way  responsible,  replevin 
will  be  permitted  at  the  suit  of  the  owner.  This  rule  will  not 
apply  where  the  taxgatherer  finds  the  property  seized  in  the 
possession  of  the  delinquent  tax-payer;  in  making  the  seizure 
in  such  cases  the  officer  does  nothing  but  his  duty.^  But  when 
the  tax  collector  seizes  upon  the  property  of  A.  in  A.'s  pos- 
session, to  satisfy  a  tax  due  from  B.,  whether  the  seizure  be 
by  design  or  evident  mistake,  the  act  is  wrongful,  and  the 
warrant,  though  never  so  formal  and  proper  so  far  as  A.  is 
concerned,  ytt  it  is  no  warrant  against  B.,  and  by  all  the  anal- 

'  Campbell  v.  Head,  13  111.  126.  When  property  which  has  been  seized 
for  a  tax  is  by  any  means  replevied  from  the  officer,  the  court  will,  at  once 
upon  that  fact  becoming  apparent,  dismiss  the  action  and  order  a  return. 
McClaughry  v.  Cratzenberg,  39  III.  123;  People  v.  Albany  Com.  Pleas,  7 
Wend.  485;  Bringhurst  v.  Pollard,  6  Ind  452;  Dowell  v.  Richardson,  10 
Ind.  574.  When  the  plaintiff  made  oath  that  goods  were  not  taken  for  any 
tax,  and  the  collector  and  his  deputy  both  swore  in  positive  terms  that  it 
was  taken  for  a  tax,  we  should  probably  assume  that  the  plaintiff  was  mis- 
taken, and  did  not  know  that  it  was  taken  for  a  tax.  O'Reilly  v.  Good,  43 
Barb.  521.  A  tax  warrant,  regular  on  its  face,  is  a  protection  to  the  officer, 
so  far  as  the  writ  of  replevin  is  concerned,  and  while  the  owner  may  en- 
quire  into  the  legality  of  the  levy  by  certiorar-i  or  otlier  proceeding,  he 
cannot  by  replevin  of  tlie  property.    Bilbo  v.  Henderson,  21  Iowa,  57. 

*  Palmer  v.  Corwith,  3  Chand.  (Wis.)  297. 

*  Sheldon  v.  Van  Buskirk,  2  Comst.  (N.  Y.)  473. 

9 


130  PEOPEETY    SEIZED    FOK    A   TAX. 

ogies  of  the  law  in  similar  cases,  will  not  furnish  any 
justification  to  the  officers. ^  A  warrant  for  the  collection  of 
taxes  by  distraint  on  the  goods  of  A.  is,  in  fact,  no  justification 
of  a  willful  trespass  by  the  officer  npon  the  goods  of  B.,^  and 
replevin  will  lie. 

§  232.  The  same.  The  case  of  Yocht  v.  Reed,  70  III.  491, 
liolds  a  doctrine  directly  contrary  to  that  stated  above.  The 
law  in  Illinois  is  of  course  settled  by  this  case;  and  in  States 
where  a  similar  statute  exists,  should  the  case  arise  for  the 
first  time,  the  construction  adopted  in  Illinois  may  be  fol- 
lowed, or  the  decision  in  Michigan  or  New  York  may  be 
thought  the  most  worthy  example. ^ 

'  Travers  v.  Inslee,  19  Mich.  100;  Stockwell  v.  Veitch,  15  Abb.  Pr.  412. 

'^Atlantic,  etc.,  R.  R.  v.  Cleino,  2  Dillon,  175;  Koyes  v.  Haverhill,  11 
Cush.  338.     See  and  compare  Heagle  v.  Wheeland,  65  III.  425. 

^  Opinion  of  the  court  by  Mr.  Justice  Craig:  Upon  compa-'son  of  the 
two  clauses  of  §  3,  it  will  be  seen  there  is  a  striking  difierence  between 
them.  The  one  reads,  "  And  that  the  same  has  not  been  taken  for  any  tax, 
assessment  or  fine,  levied  by  virtue  of  any  law  of  this  State;''  and  the  other 
clause  reads,  "nor  seized  under  any  execution  or  attachment  against  the 
goods  and  chattels  of  such  plaintiff  liable  to  execution  or  attaclimenty 
Where  the  goods  of  a  stranger  to  an  execution  are  taken,  he  can,' with 
truth  and  propriety,  swear  that  the  property  was  not  taken  by  virtue  of  an 
execution  or  attachment  against  his  goods  and  chattels  liable  to  execution 
or  attachment;  but  where  property  is  taken  by  a  tax  collector  under  a  war- 
rant  for  taxes,  a  different  case  is  presented.  The  point  is  not  whether  the 
property  is  lidble  to  a  tax  warrant,  as  is  the  case  when  taken  on  execution 
or  attachment,  but  has  the  property  been  taken  on  a  tax  warrant?  If  it 
has,  the  writ  of  replevin  cannot  issue,  because  the  statute  says  no  writ 
shall  issue  until  an  affidavit  is  filed  that  the  property  has  not  been  taken 
for  any  tax  assessment  or  fine  levied  by  virtue  of  any  law  of  this  State. 
The  effect  of  the  statute  is  that  the  action  of  replevin  does  not  lie  in  any 
case  where  the  property  is  seized  by  a  tax  collector  under  a  tax  warrant. 
The  object  and  intent  of  the  statute  are  obvious.  The  government  cannot 
be  carried  on,  and  the  laws  enforced,  without  the  revenue  is  collected.  If 
the  collectors  of  the  revenue  were  to  be  hampered  and  tied  up  by  replevin 
suits  when  they  are  collecting  the  taxes,  it  would  be  found  difficult,  if  not 
impossible,  to  make  collection;  and  we  have  no  doubt  the  legislature  fore- 
saw  these  difficulties,  and  prohibited  the  action  of  replevin  for  the  very 
purpose  of  avoiding  them.  It  is,  however,  insisted  by  appellee  that  it  is 
a  great  hardship  to  have  one  man's  property  taken  to  pay  a  tax  of  another. 
The  tax  collector  has  no  right  to  take  the  property  of  one  to  pay  the  tax 
of  another;  if  he  does  it,  he  is  liable.  The  injured  party  has  his  icniedy 
in  trespass  or  trover.    If  the  officer  takes  property  of  one  to  pay  the  tax 


RIGHT   TO    EMFLOY    OTHER   REMEDIES.  131 

§  233.  The  prohibition  of  this  remedy  does  not  aflfect  the 
right  of  the  party  to  employ  any  other  proper  remedy.  While 
the  law  prohibits  the  use  of  the  action  of  replevin  for  the 
recovery  of  goods  seized  for  a  tax,  it  by  no  means  debars  the 
injured  party  of  other  and  proper  remedies.  The  intention  of 
the  law  is  to  prevent  the  withdrawal  of  property  seized  for  a 
tax  from  the  custody  of  the  officer;  not  to  prevent  the  party 
from  proceeding  to  recover  damages  in  case  the  seizure  was 
wrongful.  The  owner  of  goods  so  seized  may,  therefore,  sue  the 
officer  in  trespass,  or  any  other  proper  form  of  action,  and 

of  another,  lie  acts  at  his  peril ;  and  the  laws  of  the  country  will  compel 
him  to  respond  in  ample  damages  to  the  injured  party;  so  that  the  law, 
while  it  prohibits  a  remedy  by  action  of  replevin,  affords  ample  protection 
in  another  form  of  action.  The  judgment  of  the  circuit  court  will  be  re- 
versed and  the  cause  remanded. 

Breese,  Chief  Justice,  dissenting :  I  cannot  believe  it  was  the  intention 
of  the  legislature  to  authorize  the  levy  and  sale  of  the  property  of  A.  to  pay 
the  taxes  of  B.  The  design  of  the  statute  evidently  was  to  prevent  any 
person  wliose  property  has  been  levied  on,  for  taxes  assessed  against  him, 
to  question  it  in  an  action  of  replevin,  and  that  is  the  extent  of  McClaugliry 
V.  Cratzenberg,  39  111.  117,  as  the  reasoning  of  the  opinion  shows.  A  person 
may  be  passing  through  a  town  or  city  of  this  State,  with  his  vehicle,  and 
it  was  seized  by  a  tax-gatherer  for  the  taxes,  not  assessed  against  that  proji- 
erty  or  its  owner,  but  against  another  person.  Under  this  decision,  that 
official,  in  Chicago  or  any  other  place,  can  enter  the  dwelling  of  a  person 
and  take  from  it  his  choicest  furniture,  his  heirlooms,  and  valuable  works 
oi  art,  to  pay  taxes  not  assessed  against  it,  and  for  which  it  is  not  liable. 
It  is  poor  satisfaction,  and  the  merest  trifling  with  one's  right  to  propertj-, 
to  say  he  can  sue  the  oflicer  in  trespass  or  trover.  The  officer  may  not  be 
able  to  respond  in  damages,  and  in  the  meantime  tlie  owner  has  lost  an 
article  of  property  for  which  money  would  be  no  compensation,  as  there 
is  a  matter  of  sentiment  involved  in  the  possession  of  such.  It  would  be 
no  satisfaction  to  one  on  a  journey  to  have  his  horse  and  carriage  taken 
from  him  in  this  way,  and  be  denied  a  speedy  remedy,  by  replevin,  to 
repossess  himself  of  his  property  and  proceed  on  his  journey.  Nor  would 
it  be  to  a  farmer  who  has  brought  a  load  of  wheat  to  market.  In  this  case, 
there  is  no  public  necessitj'  for  this  levy,  as  tlie  land,  upon  which  the  tax 
was  assessed,  was  immovable,  and  could  be  sold,  as  in  like  cases,  for  the 
taxes.  I  cannot  believe  it  could  have  been  the  intention  of  the  law-makers 
that  thig  act  should  have  the  construction  now  given  by  this  court.  Every 
man's  property  is  now  at  the  mercy  of  the  tax-gatherer,  whether  taxes  are 
due  upon  it  or  not.    This  is,  in  my  opinion,  a  great  wrong  and  injustice. 

Mr.  Justice  Scott:  I  concur  with  the  Chief  Justice  in  the  above  con- 
struction of  tlie  statute.    Vocht  v.  Reed,  70  111.  491. 


132  PROPERTT    SEIZED   FOB   A   TAX, 

may  recover  the  value  of  his  goods  with  damages  for  the 
taking  and  detention. i 

§  234.  The  action  permitted  where  the  plaintiff  does  not 
ask  delivery  of  the  property.  The  action  of  replevin  has 
been  permitted  to  contest  the  legality  of  a  tax  in  cases  where  the 
plaintiff  does  not  claim  delivery  of  the  goods  pending  the  suit. 
Tins,  it  will  be  observed,  in  no  way  interferes  with  the  prompt 
collection  of  the  revenue,  which  is  the  only  reason  for  the  gen- 
eral rule,  and  there  appears  no  objection  in  the  principle  to 
allowing  the  action  in  all  cases  as  a  means  of  contesting  the 
validity  of  the  tax  levy,  provided  the  writ  is  not  allowed  to 
interfere  with  the  possession  of  the  property  by  the  officer  who 
holds  the  tax  warrant,  or  delay  the  collection  of  the  tax.  The 
statute  in  many  States  permits  the  plaintiff  to  sue  in  this  form 
of  action  without  asking  deliverance  until  the  court  shall  have 
had  an  opportunity  to  try  the  title  and  pronounce  npon  the 
rights  of  the  parties.  In  such  case  the  action  is  similar  to  tro- 
ver; the  judgment  is  for  the  property,  or  its  valu^in  case  it 
cannot  be  had.  This  proceeding  in  no  way  delays  the  collec- 
tion of  the  taxes,  and  none  of  the  rules  which  apply  in  such 
cases  apply  in  this.^ 

§  235.  The  prohibition  does  not  extend  to  a  purchaser  at 
tax  sale.  "Wliile  property  which  has  been  seized  upon  a  war- 
rant for  the  collection  of  a  tax  or  a  fine  cannot  be  replevied, 
the  prohibition  goes  no  further  than  to  the  officer.  The  owner 
of  goods  wrongfully  seized  and  sold  for  taxes  may  employ  this 
remedy  against  the  purchaser,  and  may  show  that  the  judg- 
ment levy  or  sale  was  void,  or  that  no  tax  was  due,  or  in  fact 
may  set  up  any  error  which  would  make  the  sale  void.  A 
void  judgment,  levy,  or  sale  for  tax  conveys  no  better  title  to 
the  purchaser  than  a  void  judgment  upon  any  other  claim.  So, 
also,  where  the  property  is  seized  and  sold  for  a  tax  due  from 

'  Dow  V.  Sudbury,  5  Met.  73;  Shaw  v.  Becket,  7  Cush.  443;  Cardinal  v. 
Smith,  Deady,  C.  C.  197;  Ware  «.  Percival,  61  Me.  391 ;  People  «.  Super- 
visors  of  Chenango,  11  N.  Y.  563;  Supervisors,  etc.,  v.  Manny,  56  111.  101; 
Lauman  v.  Des  Moines  C,  29  lovva,  310. 

2  Dudley  v.  Ross,  27  Wis.  680. 


"WARRANT  MUST  BE  REGULAR.  133 

another  person,  the  owner  may  have  replevin  against  the  pur- 
chaser. 1 

§  236.  The  bare  assertion  of  the  defendant  that  the  goods 
are  seized  for  tax,  not  sufficient.  While  the  law  will  not  per- 
mit the  action  of  replevin  in  a  case  wliere  the  property  sought 
to  be  recovered  was  seized  for  a  tax,  yet  the  bare  assertion  of 
the  defendant  that  such  is  the  case,  or  an  unsupported  plea, 
will  not  justify  tlie  court  m  refusing  to  proceed  with  the  case. 
The  defendant  should  produce  some  warrant,  or  valid  authority 
to  him,  to  take  the  property,  or  show  the  court  by  satisfactory 
evidence  that  his  claim  is  valid  and  just,  and  that  the  seizure 
was  made  in  the  discharge  of  his  duty  as  a  tax  collector.^ 
Were  the  law  otherwise  any  defendant,  whether  an  officer  or 
trespasser,  might  claim  the  immunity  which  the  law  only 
extends  to  its  officers. 

§  237.  The  warrant  must  be  regular  on  its  face,  and  purport 
to  be  issued  by  competent  authority.  The  warrant  must  be 
regular  on  its  face;  it  must  purport  to  be  a  regular  tax  war- 
rant; it  must  in  terms  authorize  the  officer  to  proceed  witli 
the  collection  of  the  tax  mentioned  by  seizure  of  the  goods  of 
the  tax  payer  It  must  also  purport  to  be  issued  by  some  com- 
petent legal  authority,  and  must  be  for  a  tax  which  can  by 
legal  possibility  be  levied. ^  A  sham  warrant  issued  by  irre- 
sponsible parties,  or  a  regular  warrant  for  a  sham  tax,  where 
it  is  apparent  from  the  face  of  the  warrant  that  it  was  issued 
without  jurisdiction,  will  furnish  no  protection  to  the  officer 
and  replevin  will  lie.  When  the  law  authorized  the  village 
trustee  to  assess  the  value  of  the  imjjrovement  of  a  sidewalk 
on  the  property  of  adjoining  owners,  and  they  did  assess  the 
value  of  an  improvement  of  the  street,  and  the  warrant  so 
showed  on  its  face,  it  was  held  to  confer  no  authority,  and 
replevin  of  property  seized  under  it  was  sustained. ^     So  when 

'  Dudley  v.  Ross,  27  Wis.  679 ;  Macklot  v.  Davenport,  17  Iowa,  379 ;  Heagle 
c.  "Wheel and,  64  111.  423;  Stiles  v  Griffiths,  3  Yeates  (Pa.)  82;  Bilbo  v.  Hen- 
derson,  21  Iowa,  57. 

2  Mt.  Carbon  Coal  Co.  v.  Andrews,  53  111.  177;  Hudler  v.  Golden,  36  N. 
Y.  446;  Le  Roy  v.  East  Sag.  R.  R.,  18  Mich.  233. 

3  Hudler  v.  Golden,  36  N.  Y.  446. 

4  Wright  V.  Briggs,  2  Hill.  77. 


134  PROrERTY    SEIZED   FOR    A    TAX. 

the  defendants  justified  the  seizure  by  virtue  of  a  tax  warrant 
for  taxes  due  the  city  of  Muscatine;  the  boundaries  were 
extended,  taking  in  the  plaintiff's  farm  land  for  purposes  of 
taxation,  and  the  act  had  been  held  unconstitutional  —  held^ 
tliat  replevin  would  lie.^  And  in  the  latter  case  the  plaintiff 
in  replevin  was  held  not  estopped  from  denying  the  validity 
of  the  tax  by  the  fact  tliat  he  has  paid  several  similar  taxes 
on  the  same  property  before. ^ 

§  238.  It  must  appear  to  be  for  a  tax  whicli,  by  legal  possi- 
bility, may  be  valid.  It  must  appear  that  tlie  tax  was  such  as 
could  by  legal  possibility  have  been  properly  and  lawfully 
levied  by  regular  and  proper  legal  proceedings  for  that  pur- 
pose. Thus,  when  the  act  of  incorporation  of  a  railroad  com- 
pany provided  that  the  company  should  pay  annually  a  specified 
tax  of  one-half  of  one  per  cent,  on  the  whole  amount  of  its  paid 
in  capital  stock,  in  lieu  of  all  other  taxes  on  the  property  of 
the  company,  the  company  was  allowed  to  sustain  replevin 
against  a  collector  who  seized  their  property  for  the  payment 
of  a  tax  assessed  by  a  city  situated  on  the  line  of  its  road.^ 
Where  it  is  made  to  appear  that  the  tax  under  which  the  seiz- 
ure was  made  was  never  levied,  or  that  the  levy  was  afterwards 
legally  rescinded,  the  owner  of  the  property  seized  for  such 
tax  may  sustain  replevin.  Thus,  at  a  town  meeting  a  certain 
tax  for  road  purposes  was  laid,  but  at  a  subsequent  legal 
town  meeting  the  tax  was  rescinded.  The  collector  could  not 
legally  proceed  to  collect  such  tax,  and  where  he  seized  prop- 
erty for  that  purpose  the  owner  was  permitted  to  sustain 
replevin.* 

§  239.  The  seizure  must  be  by  an  officer.  The  seizure  must 
be  a  legal  seizure  by  an  officer  duly  authorized  to  act  in  that 
behalf.  It  is  true  the  title  of  the  officer  cannot  be  questioned 
in  this  action, 5  but  the  officer  must  at  least  assume  to  be 
an  officer  authorized  to  act  at  the  time  and  place  where  the 

1  Morford  «.  Unger,  8  Iowa,  83. 
"  Buell  t).  Ball,  20  Iowa,  283. 

3  Le  Roy  «.  East  Saginaw  City  Ry.,  18  Mich.  237. 

4  Stoddard  tj.  Gilman,  32  Vt.  570.. 

*  Mt.  Carbon  Coal  Co.  «.  Andrews,  53  111.  183. 


FOB   THE   PAYMENT   OF    A    FINE.  135 

seizure  was  made.  An  officer  duly  authorized  in  one  county 
or  district  would  have  no  authority  to  go  into  another  county 
or  district  to  seize  property,  even  though  the  property  was 
once  within  his  bailiwick  and  assessed  there. 

§  240.  Where  an  officer  goes  out  of  his  bailiwick.  When 
plaintiflF's  wagon  was  distrained  for  a  school  tax,  it  appeared 
that  after  the  tax  was  levied  a  new  school  district  was  created, 
and  plaintiff  resided  in  the  new  district  and  contended  that 
the  seizure  by  distress  was  unlawfully  made  by  the  secretarj'- 
of  the  old  district  within  the  limits  of  the  new.  Held^  that 
tax  was  no  lien  until  seizure;  that  the  tax  gave  no  right  to 
seize  the  wagon  where  it  could  be  found,  and  the  seizure  with- 
out the  district  was  unautjiorized  and  illegal.  The  law  forbids 
the  replevin  of  property  seized  for  any  tax,  assessment  or  fine 
levied  under  the  authority  of  law.  The  principle  extends  to 
the  seizure  as  well  as  to  the  assessment,  and  equally  forbids  all 
questions  respecting  the  validity  and  regularity  of  the  war- 
rant and  of  the  assessment,  but  there  must  be  some  color  of 
authority  for  making  the  seizure.  For  instance,  it  has  been 
held  that  when  the  warrant  was  issued  without  jurisdiction, 
and  when  the  statute  under  which  the  assessment  was  made 
was  unconstitutional,  that  replevin  would  lie.  If  this  were 
not  the  rule  defendant  in  replevin  might  always  defeat  the 
action  by  pretending  that  the  property  had  been  taken  to 
satisfy  a  tax.  An  officer  without  his  bailiwick  is  without 
authority,  and  his  seizure  by  distress  for  tax  is  illegal. ^ 

§  241.  The  prohibition  extends  to  goods  seized  for  the 
payment  of  a  fine.  The  statute  which  prohibits  the  replevin 
of  goods  seized  for  the  payment  of  a  tax  also  embraces  goods 
seized  for  the  payment  of  a  fine. 2  Cases  of  replevin  for  goods 
seized  for  non-payment  of  a  fine  are  not  numerous,  but  the 
same  principles  would  apply  in  such  a  case  that  govern  cases 
of  seizure  for  tax.  The  seizure  should  be  by  process  formal 
on  its  face,  issued  by  a  tribunal  which  has  by  law  autlioritv  to 
impose  a  fine,  and  in  a  case  where  by  legal  possiI)ility  a  fine 
can  rightfully  be  imposed.     The  execution  of  the  process  ought 

'  l\[cKiiy».  Batchellor,  3  Colorado,  rm. 

«  Poll  B.  Oldwine,  7  Watts,  173 ;  Martia  v.  Mott,  13  Wlieat.  19. 


136  PKOrEETT   SEIZED   FOR   A    TAX. 

to  be  bj  an  officer  who  at  least  is  an  officer  de  facto  at  the 
time  and  place  wliere  tlie  seizure  is  made.  Should  any  one  of 
these  essentials  be  lacking  in  a  seizure  for  a  line,  by  the  analo- 
gies which  obtain  in  other  cases,  replevin  would  lie  for  the 
goods  so  seized.  1 

§  242.  Replevin  against  a  purchaser.  Where  the  defend- 
ant justified  under  a  pound  master's  sale,  it  was  held  that  an 
officer  to  justify  a  seizure  of  property  mnst  produce  a  process 
regular  and  valid  on  its  face.  That  to  sustain  a  sale  by  a 
pound  master  he  would  be  bound  to  prove  that  the  animal  was 
in  the  situation  which  the  ordinance  had  designated  to  author- 
ize him  to  make  seizure  before  he  could  be  justified.  The 
main  fact  that  they  are  officers  of  the  law  does  not  constitute 
a  justification  for  seizing  and  selling  property,  but  the  author- 
ity must  be  shown.  A  person  having  purchased  any  article 
of  personal  property  at  a  sheriff  or  constable's  sale,  and  sued 
by  the  former  owner  for  its  recovery,  must  deraign  and  show 
his  title  thi'ough  and  by  an  execution  against  the  claimant,  or 
the  owner  of  the  property,  and  a  sale  by  the  officer.  The 
mere  proof  of  a  sale  would  not  suffice  to  establish  the  transfer 
of  the  title  to  the  purchaser.  Nor  has  the  law  created  any 
greater  or  different  presumption  in  favor  of  a  sale  made  by  a 
pound  master  than  by  a  sheriff  or  constable.  In  either  case 
the  validity  of  the  sale  must  be  established  by  showing  the 
authority,  which  cannot  be  presumed.  In  the  one  case  it  is 
done  by  documentary  evidence;  in  the  other  it  is  necessarily 
oral. 3  "Where  property  is  sold  for  a  fine  or  penalty,  the  owner 
may  employ  replevin  against  the  purchaser,  and  require  him 
to  show  the  validity  of  the  proceeding  under  which  the  sale 
was  made.* 

'  See  Martin  v.  Mott,  12  Wheat.  19. 

«  Clark  V.  Lewis,  35  111.  433. 

8  Heagle  u.  Wlieeland,  04  111.  423 


GOODS  IN  THE  CUSTODY  OF  THE  LAW. 


137 


CHAPTEE  XI. 


GOODS  IN  THE  CUSTODY  OF  THE  LAW. 


Section 

Replevin  does  not  lie  for  goods 
in  the  custody  of  the  law 

Limitation  upon  this  rule 

Lies  for  goods  wrongfully  seized 
by  an  officer  upon  process     . 

Of  the  right  of  a  person  to  take 
possession  of  his  goods  which 
have  been  wrongfully  seized 
by  an  officer    .... 

Replevin  does  not  lie  for  goods 
in  the  hands  of  a  receiver  of 
court 

Does  not  lie  at  the  suit  of  a  de- 
fendant in  execution  against 
the  sheriff        .... 

Nor  at  the  suit  of  a  grantee  of 
such  defendant  after  the  seiz- 
ure    

The  reason  for  the  rule 

Qualifications  of  the  rule  . 

Does  not  lie  for  liquors  seized 
under  an  act  to  preveat  the 
sale  of  intoxicating  beverages  253 

But  the  writ  was  allowed  wliere 
the  seizure  was  under  an  ordi- 
nance which  had  been  de- 
clared void  by  a  court  of 
competent  jurisdiction  . 

Does  not  lie  for  cattle  legally 
impounded      .... 

Lies  for  powder  seized  under  an 
ordinance  prohibiting  its  in- 
troduction in  large  quantities 
into  a  city        .... 

Does  not  lie  for  property  taken 


243 
244 

245 


246 


247 


248 


249 
250 
'251 


253 


254 


255 


256 


257 
259 


Section 
on  a  writ  of  replevin  until  after 
tlie  former  case  is  decided    . 

The  distinction  between  a  writ 
of  replevin  and  an  execution 
or  attacliment .... 

Cross-replevins  not  allowed  258, 

The  sherifl'charged  with  the  ex- 
ecution  of  process  must  obey 
it  at  his  peril  .        .        ,  2G0,  261 

Replevin  lies  for  goods  wrong, 
fully  sold  by  sheriff  on  execu- 
tion 

Distinction  between  replevin 
for  the  goods  and  an  action 
against  the  officer  as  a  tres- 
passer       

Writ  of  replevin — when  and  how 
far  a  protection  to  the  officer 
serving  it        ...        . 

Whether  the  writ  authorizes  a 
seizure  of  the  goods  from  a 
stranger  ....  t^Oo, 

Writ  of  return  authorizes  seizure 
only  from  the  person  named  . 

Replevin  lies  for  exeraj)!  prop- 
erty wrongfully  seized    . 

The  aid  of  the  statute  must  be 
invoked   

The  exemption  a  personal  priv- 
ilege          

The  same.  Damages  and  costs 
in  such  cases  .... 

Jurisdiction  in  replevin,  where 
goods  have  been  wrongfully 
seized 


263 


263 


264 


266 


267 


268 


269 


270 


271 


273 


138 


GOODS    IN   THE    CDSTODT    OF   THE    LAW. 


The  same.    The  question  stated  273 

The  rule  in  Freeman  v.  Howe  .  274 

The  doctrine  in  this  case  con- 
sidered  .      .        .        .  275  to  282 

The  power,  duty  and  responsi- 
bility of  the  sheritf  in  serving 
the  writ  of  replevin        .        .  283 

He  must  see  that  the  writ  is  in 
form 284 

And  that  it  issue  from  a  court 
of  competent  jurisdiction  to 
issue  such  a  writ    .        .        .  285 

The  writ  does  not  authorize  a 
seizare  of  goods  from  the  per- 
son of  the  defendant      .        .  286 

The  right  of  an  officer  to  break 
and  enter  a  dwelling  to  take 
goods 287 

Parties  bound  to  know  the 
sheriff 288 

Duty  of  the  sheriff  to  take  bond. 
His  liability  in  respect  to  the 
bondsmen        ....  289 

Extent  of  the  sheriff's  liability  290 


Return  by  sheriff  of  goods 
wrongfully  seized  by  him      .  291 

Duty  of  a  sheriff  on  receiving 
a  writ  of  replevin  .        .        .  292 

Duty  of  the  sheriff  with  respect 
to  severing  articles  claimed  to 
be  real  estate    .        .        .  293 

The  liability  of  the  officer  a  per- 
sonal one        ....  294 

The  sheriff  liable  for  the  acts 
of  his  deputies        .        .        .  295 

Disputes  between  deputies  of 
the  same  sheriff  settled  by  him  296 


The  officer's  return    . 

As  to  the  service  of  a  writ  of 
replevin  .        .        .        .        . 

Effect  of  the  replevin  of  prop- 
erty seized  on  execution 

Special  property  created  by  a 
levy  on  goods .... 

Justification  by  an  officer  . 

The  defense  by  sherifr,  when 
goods  seized  are  replevied 
from  him ....  302. 


297 

298 

299 

300 
301 


303 


§  24:3.  Replevin  does  not  lie  for  goods  in  the  custody  of  the 
law.  It  was  an  ancient  maxim  of  the  law,  that  goods  seized 
by  an  officer,  in  obedience  to  legal  process,  were  in  the  custody 
of  the  law.i  The  court  regarding  the  officer  only  as  its  min- 
ister, and  goods  in  his  possession,  upon  the  order  or  mandate 
of  the  court,  as  in  tlie  custody  of  the  court,  they  could  only  be 
taken  upon  its  order  or  permission.  An}'  attem]->t  to  interfere 
with  them,  without  sucli  permission,  was  looked  upon  as  aeon- 
tempt.  Replevin,  therefore,  from  an  officer  so  holding  prop- 
erty was  looked  upon  as  a  contempt,  and  punished. ^ 


J  McLcod  V.  Gates,  8  Ired.  (N.  C.)  387;  Jenner -y.  Joliffe,  9  Johns.  384; 
Buckley  v.  Buckley.  9  Nev.  379;  Raiford  v.  Hyde,  36  Geo.  93;  Phillips  v. 
Harriss,  3  J.  J.  Marsh.  (Ky.)  122;  Reade  v.  Hawks,  Hob.  16;  Reeside  v. 
Tischer,  2  Har.  &  G.  (Md.)  320;  Watkins  v.  Page,  2  Wis.  97;  Hall  v.  Tuttle, 
2  Wend.  478;  Morgan  v.  Craig,  Hardin.  (Ky.)  101. 

"  Funk  V.  Israel,  5  Iowa,  450;  Phillips  v.  Harriss,  3  J.J.  Marsh.  (Ky.)  123; 
Cooley  V.  Davis,  34  Iowa,  128;  Powell  v.  Bradlee,  9  Gill.  &  J.  (JMd.)  220; 
Hagan  v.  Deuell,  24  Ark.  216;  Goodrich  v.  Fritz,  4  Ark.  525;  Allen  v.  Sta- 
ples, 6  Gray,  (Mass.)  493 ;  Beers  v.  Wuerpul,  24  Ark.  273 ;  Shearick  v.  Iluber, 


WRONGFULLY    SEIZED   BY    AN   OFFICER.  139 

§  244.  Limitation  upon  this  rule.  This  rule,  tliou^li  still  in 
force,  must  be  understood  as  applying  oulj  to  cases  where  the 
seizure  is  rightful,  and  upon  valid  and  sufficient  process,  and 
not  generally  to  all  cases  where  an  officer  assumes  to  execute 
process. 

§  245.  Lies  for  goods  wrongfully  seized  by  an  oflacer  upon 
process.  If  an  officer,  in  attempting  to  execute  process  of 
execution  or  attachment,  b}^  mistake  or  design  take  goods  not 
the  property  of  tlie  defendant  in  the  writ,  or  goods  not  law- 
fully subject  to  seizure  on  such  writ,  he  is  a  trespasser,  and 
acquires  no  right  to  the  goods  seized ;i  and  the  injured  party 
may  have  replevin  for  their  recovery,  or  may  proceed  against 
the  officer  in  trespass  or  trover,  at  his  election. 2 

§  246.  Of  the  right  of  a  personto  take  possession  of  his  goods 
which  have  been  wrongfully  seised  by  an  officer.  A  man  is  not 
a  trespasser  for  taking  possession  of  his  own  goods,  if  he  does 
so  peaceably;  and  when  he  does  so  acquire  the  possession  of 
his  own  property,  the  fact  that  it  had,  before  then,  been  levied 
on  by  the  sheriff,  by  virtue  of  an  execution,  or  taken  on  a  writ 
of  replevin,  to  which  he  was  not  a  party,  will  not  render  hiin 
liable  as  a  trespasser;  nor  would  replevin  lie  against  him  for 
the  possession  of  his  property  so  taken. ^  When,  therefore, 
goods  which  had  been  levied  on  by  the  sheriff  came  peaceably 
to  the  possession  of  the  owner,  who  was  a  stranger  to  the  exe- 
cution, and  they  were  retaken  from  him  by  the  sheriff,  he  was 

6  Binn.  4;  Spring  v.  Bourland,  6  Eng.  (Ark.)  6~)S;  Watson  v.  Todd,  5  Mass. 
271;  Mulholm  v.  Cheney,  Addis,  (Pa.)  301;  Goodlicart  v.  Bowen,  2  Bradw. 
(111.)  578 ;  Badlam  v.  Tucker,  1  Pick.  389 ;  Browuell  v.  Manchester,  1  Pick. 
234 ;  Milliken  v.  Selye,  6  Ilill,  G23 ;  Squires  v.  Smith,  10  B.  Mon.  33.  Though 
trover  or  trespass  was  permitted.     Cromwell  v.  Owings,  7  Har.  &  J.  55. 

1  Clark  V.  Skinner,  20  John.  468;  Tison  v.  Bowden,  8  Pla.  70;  Gardner  v. 
Campbell,  15  Jolm.  401;  Chinn  v.  Russell,  2  Blackf.  172. 

2  Hunt  V.  Pratt,  7  R.  I.  283 ;  Gibson  v.  Jenney,  15  Mass.  205 ;  Foss  v. 
Stewart,  14  Maine,  312;  Bean  v.  Hubbard,  4  Cush.  (Mass.)  85 ;  Dcyo  v.  Jen- 
nison,  10  Allen,  410;  Leavitt  v.  Metcalf,  2.  Vt.  813;  Haskill  v.  Andros,  4 
Vt.  609;  Mulholm  0.  Cheney,  Addis,  (Pa.)  301;  Stone  v.  Bird,  16  Kan.  488. 

»  Spencer  v.  M'Gowen,  13  Wend.  256 ;  Sims  v.  Reed,  12  B.  Mon.  (Ky.)  51 ; 
Wood  V.  Hyatt,  4  John.  313;  Hyatt  v.  Wood,  4  John.  150;  Merritt  y.  Miller, 
13  Vt.  416;  Barnes  v.  Martin,  15  Wis.  240;  Marsh  v.  White,  3  Barb.  518; 
Kunkle  v.  State,  82  Ind.  220;  Bills  v.  Kinson,  (1  Post.)  21  N.  H.  4iS. 


140  GOODS   IN    THE    CUSTODY   OF   THE   LAW. 

entitled  to  sustain  replevin  for  their  recovery. ^  This  is  hut 
an  application  of  the  well-known  rule,  that  an  officer,  taking 
possession  oi  goods  by  virtue  of  process,  must  keep  possession. 
A  voluntary  surrender  releases  the  levy. 

§  247.  Replevin  does  not  lie  for  goods  in  the  hands  of  a 
receiver  of  court.  Property  in  the  hands  of  a  receiver  of 
court,  duly  appointed  to  take  charge  of  that  property,  is  in 
the  custody  of  the  law,  and  cannot  be  seized  upon  execution 
or  attachment,  or  replevied  without  permission  oi  the  court 
by  whose  appointment  it  is  held.  It  is  for  the  time  in  the 
custody  of  the  court,  to  be  disposed  ot  as  the  law  directs. 2 
But  when  the  receiver  assumes  to  hold  property  not  included 
in  the  decree,  and  to  which  the  debtor  never  had  any  title, 
with  respect  to  such  goods  he  is  not  regarded  as  an  officer, 
but  as  a  trespasser,  and  the  rightful  owner  can  sue  him  in  any 
appropriate  form  of  action,  either  for  the  property  or  for 
damages.^  The  more  appropriate  course  would  be  to  apply 
to  the  court  under  whose  authority  the  receiver  assumes  to 
act,  and  upon  a  showing  of  the  facts  the  court  will  unques- 
tionably make  such  order  as  would  fully  protect  the  rights  of 
the  claimant;  and  if  he  show  himself  to  be  the  owner,  the 
court  will,  without  doubt,  order  the  property  to  be  sur- 
rendered.'* 

§  248.  Does  not  lie  at  the  suit  oi  a  defendant  in  execution 
against  the  sheriff.  By  the  common  law,  and  by  a  provision 
existing  in  the  statutes  of  all,  or  nearly  all,  the  States,  a  de- 
fendant in  an  execution  or  attachment  cannot  sustain  replevin 
for  goods  which  have  been  taken  from  him  by  virtue  of  process 
to  which  he  is  a  party  defendant,  unless  the  property  is  by 
statute  exempt  from  seizure.^     So,  when  the  mortgageor  of 

'  Hall  V.  Tuttle,  2  Wend.  476. 

*  Wiswall  V.  Sampson,  14  How.  52;  Noe  v.  Gibson,  7  Paige,  515;  Robin- 
son v.  Atlantic  &  Gt.  W.  Ry.,  66  Pa.  St.  160;  Parker  v.  Browning,  8  Paige, 
388. 

"  Hills  V.  Parker,  111  Mass.  510;  Paige  v.  Smith,  99  Mass.  305;  Leigliton 
V.  Harwood,  111  Mass.  67. 

4  Parker  v.  Browning,  8  Paige,  388;  Tn  re  Vogle,  7  Blatchf.  19. 

8  Hopkins  v.  Drake,  44  Miss.  622;  Yarborough  v.  Harper,  25  Miss.  112; 
Dearmon  v.  Blackburn,  1  Sneed.  (Tenn.)  390;  Wilson  ■».  McQueen,  1  Head, 


DOES   NOT   LIE   AT   SUIT   OF   GRANTEE    AFTER    SEIZURE.       IJl 

chattels  bronglit  replevin  against  the  sheriff  for  seizing  the 
mortgaged  property  on  execution  against  the  mortgagee,  it 
appeared  tliat  the  judgment  and  execution  was  against  both 
the  mortgageor  and  mortgagee,  in  such  case  neither  could 
sustain  replevin  against  the  officer.  ^ 

§  249.  Nor  at  the  suit  of  a  grantee  of  such  defendant 
after  the  seizure.  Neither  can  a  grantee  of  such  defendant, 
after  the  goods  were  seized,  sustain  the  action,  as  he  occu])ies 
no  better  position  than  the  defendant.^  The  rule  may  there- 
fore be  stated  as  general,  that  when  goods,  not  exempt  by  law, 
are  taken  from  the  possession  of  the  defendant  named  in  the 
process,  by  virtue  of  an  execution  regular  on  its  face,  replevin 
will  not  lie  at  the  suit  of  such  defendant. ' 

§  250.  The  reason  for  the  rule.  The  reason  for  this  rule  is 
apparent  wlien  it  is  considered  that  it  the  defendant  were  per- 
mitted to  maintain  replevin,  it  would  be  in  his  power  to 
prolong  and  perhaps  defeat  a  valid  claim,  upon  which  he  has 
had  a  full  opportunity  to  make  his  defense  when  judgment 
was  rendered  against  him;  and  this  would  produce  delay  in 
the  execution  of  a  process  which  is  final  in  its  nature.  Statu- 
tory provisions  exist  in  some  States  which  permit  the  replevy- 
ing of  property  attached,  but  such  proceedings  are  a  part  of 
the  attachment  suit,  and  are  not  affected  by  any  of  the  ordinary 
rules  in  this  action.'* 

§  251.  Qualifications  of  the  rule.  The  execution,  however, 
must  be  a  valid  one,  and  issued  by  competent  authority,  as  an 
execution  void  on  its  face  is  no  justification. ^     Also,  in  case 

(Tenn.)  19;  Orner  v.  Hollman,  4  Wliart.  (Pa.)  45;  Kellogg  v.  Churchill,  3 
N.  H.  413;  Ilsley  v.  Stiibbs,  5  Mass.  280;  Morris  v.  DeWitt,  5  Wend.  71; 
Melcher  v.  Lamprey,  20  N.  H.  403 ;  Perry  v.  Richardson,  9  Gray,  216. 
>  Talbot  V.  De  Forest,  3  G.  Greene,  (Iowa,)  586. 

2  Hines  v.  Allen,  55  Me.  115;  Gardner  v.  Campbell,  15  Johns.  401;  Dun- 
ham V.  Wyckoa,  3  Wend.  280 ;  Shaw  v.  Levy,  17  S.  &  R.  (Pa.)  103. 

3  Hall  V.  Tuttle,  2  Wend.  478 ;  Judd  v.  Fox,  9  Cow.  263 ;  Ilsley  «.  Stubbs,  5 
Mass.  283;  Thompson  v.  Button,  14  John.  84;  Gardner  ■p.  Campbell,  15  Johns. 
403;  Mills  V.  Martin,  19  Johns.  33;  Shaddon  v.  Knott,  3  Swan,  (Tenn.)  358. 

■*  Green  v.  Holden,  35  Vt.  315.    The  Kentucky  reports  contain  many 
cases  of  this  nature. 
»  White  V.  Jones,  38  111.  165 ;  Campbell  v.  Williams,  39  Iowa,  646. 


142  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

the  levy  is  void  or  wrongful,  for  any  misconduct  of  the  officer, 
the  defendant  in  the  process  may  take  advantage  of  the  error, 
and  bring  replevin  as  though  he  was  a  stranger  to  it.  When 
the  levy  was  made  on  Sunday,  the  statute  of  the  State  for- 
bidding service  on  that  day,  the  levy  was  held  void,  and  the 
defendant  in  the  process  was  permitted  to  sustain  the  action. ^ 
Or  where  a  constable  who  has  no  authority  to  execute  a  par- 
ticular process  attempts  to  make  a  levy,  the  levy  is  void.^ 
These  cases  are  all  based  upon  the  principle  that  the  taking, 
though  under  color  of  legal  process,  was  wrongful,  and  afforded 
no  protection  to  the  officer,  even  when  suit  was  brought  by  the 
defendant  named  in  the  process. 

§  252.  Does  not  lie  for  liquors  seized  under  an  act  to  pre- 
vent the  sale  of  intoxicating  beverages.  The  protection  which 
the  law  affords  to  property  in  its  custody  is  governed  by  rules 
which  will  be  best  understood  by  illustrations,  the  principles 
which  underlie  all  these  being  substantially  the  same,  to-\vit: 
That  when  the  law  has  assumed  control  of  property  for  the 
purpose  of  disposing  of  it  between  disputing  claimants,  it  will 
not  suffer  it  to  be  withdrawn  from  its  custody  until  final  dis- 
position has  been  made  by  the  court.  Where  liquors  had  been 
seized,  and  were  awaiting  the  action  of  the  court,  under  a 
process  looking  to  their  condemnation  under  a  statute  forbid- 
ding intoxicating  liquors  to  be  kept  or  sold,  they  could  be 
replevied  by  the  owner,^  and  the  court  properly  dismissed  the 
action,  on  motion.  Even  if  the  defendant  had  proved  that  he 
had  the  liquor  for  the  lawful  purpose  of  making  vinegar,  it 
would  have  been  no  defense  as  against  the  motion  to  dismiss. 
If  the  defendant's  purpose  was  lawful,  that  fact  could  be  made 
to  appear  in  the  original  proceeding,  but  the  court  would  not 
allow  property  so  seized  to  be  withdrawn  from  its  custody  at 
the  suit  of  the  owner,  until  it  had  passed  on  the  question  of 
the  seizure.  The  same  rule  was  applied  in  New  Hampsliire, 
where  liquors,  having  been  illegally  kept,  had  become  a 
nuisance,  and  were  seized  by  an  officer  under  a  warrant  to 

'  Peirce  v.  Hill,  9  Porter,  (Ala.)  151. 

»  Conner  v.  Palmer,  18  Met.  302. 

*  Funk  et  al.  v.  Israel,  5  Iowa,  450;  Monty  v.  Arneson,  25  Iowa,  383. 


POWDEB   SEIZED    UNDER   ORDINANCE.  143 

seize  and  keep  them  until  final  action  of  the  court.  They 
were  regarded  as  in  the  custody  of  the  law,  and  not  subject  to 
be  taken  upon  a  writ  of  replevin. ^  These  cases  proceed  upon 
the  ground  that  when  a  seizure  has  been  raade  by  an  officer  in 
the  execution  of  his  duty,  the  courts  will  retain  the  possession 
of  the  property  pending  the  inquiry  into  the  propriety  of  the 
seizure,  and  will  not  sutfer  a  claimant  to  withdraw  the  property 
under  pretense  that  he  desires  to  contest  the  seizure. 

§  253.  Where  the  seizure  was  under  an  ordinance  which 
had  been  declared  void.  But  where  liquors  were  seized  under 
a  town  ordinance  for  the  suppression  of  the  sale  of  intoxicating 
liquors,  and  the  ordinance  had  been  held  void  by  a  court  of 
competent  jurisdiction,  the  owner  brought  replevin  and 
recovered.2 

§  254.  Does  not  lie  for  cattle  legally  impounded.  The 
action  does  not  lie  against  a  pound  master  for  cattle  legally 
impounded,  so  long  as  he  retains  them  in  the  custody  of  the 
law;  but  when  he  removed  them  from  tlie  lawful  pound  and 
put  them  in  his  own  pasture  or  bai'n,  and  tlie  owner  finding 
them  there  took  them,  and  the  pound  master  re-took  tliem ; 
held,  that  the  pound  master  had  lost  his  legal  custody  and  the 
owner  could  recover. ^  This,  however,  will  not  preclude  the 
owner  from  testing  the  legality  of  the  seizure  and  impounding 
of  his  cattle  in  this  action.  If  the  owner,  in  such  a  case,  can 
show  the  seizure  or  detention  to  be  illegal,  for  example, 
suppose  the  pound  master  should  refuse  to  deliver  the  cattle 
upon  demand  after  payment  of  all  dues;  replevin  would 
unquestionably  be  a  proper  remedy. 

§  255.  Lies  for  powder  seized  under  an  ordinance  prohib- 
iting its  introduction  in  large  quantities  into  a  city.  Although 
the  common  council  of  a  city  may  ]ms3  an  ordinance  prohib- 
iting the  bringing  of  powder  in  large  quantities  into  the  city, 
and  though  it  may  impose  a  penalty  for  the  violation,  or  may 
compel  the  removal  of  the  powder,  such  an  ordinance  will  not 

^  State  n.  Barrels  of  Liquor,  47  N.  H.  374.  So  in  Massachusetts,  Allea 
•0  Staples,  6  Gray,  (Mass.)  491. 

2  Sullivan  v.  Stephenson,  62  111.  297. 

8  Bills  c.  Kinson,  1  Fost.  (21  N.  H.)  449;  Gate  v.  Gate,  44  N.  H.  311. 


144  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

justify  the  council  in  declaring  the  powder  forfeited  or  with- 
holding the  possession  from  the  owner,  who  may  bring  replevin 
if  it  be  withlield  from  him.^ 

§  256.  Does  not  lie  for  property  taken  on  a  writ  of  replevin 
until  after  the  former  case  is  decided.  When  an  officer  has 
taken  property  by  virtue  of  a  writ  of  replevin  for  the  purpose 
of  delivering  it  in  obedience  to  the  mandate,  he  is  regarded 
as  holding  it  in  the  custody  of  the  law,  and  it  is  not  liable  to 
any  other  replevin  from  him.^  One  of  the  reasons  which 
seems  to  govern  in  such  cases  is  that  the  writ  of  replevin  com- 
mands the  officer  to  seize  the  identical  property  and  make  a 
particular  disposal  of  it;  and  while  the  officer  is  acting  in 
obedience  to  that  command  the  law  will  not  permit  any  other 
])arty  to  interfere  and  prevent  him  from  doing  what  the  writ 
directs  him  to  do.^ 

§  257.  The  distinction  between  a  writ  of  replevin  and  an 
execution,  or  attachment.  Tiiere  is  a  marked  distinction  to  be 
observed  between  goods  taken  by  an  officer  on  an  execution,  or 
attachment,  and  goods  taken  on  a  writ  of  replevin.  In  the  latter 
case  the  identical  goods  are  in  the  custody  of  tlie  law,  and  are 
before  the  court  to  be  disposed  of  as  it  shall  see  proper;  and 
the  proceeding  is  so  far  in  rem,  that  the  goods  cannot  be  seized 
upon  any  process  until  the  court  shall  have  taken  action.  If, 
therefore,  a  party  finds  his  goods  in  the  hands  of  an  officer 
upon  a  valid  writ  of  replevin,  and  that  they  have  been  taken 
from  the  possession  of  the  defendant  named  in  the  writ,  his 
remedy  is  by  an  application  to  the  court  to  be  permitted  to 
come  in  and  set  up  his  claim  to  them,  and  not  by  an  independ- 
ent replevin.  Whereas,  if  goods  are  wrongfully  seized  by 
an  officer  upon  execution  or  attachment  it  cannot  be  said  to 

'  Cotter  V.  Doty,  5  Ohio,  395. 

2  Contra,  see  Hiigan  v.  Douell,  24  Ark.  216. 

8  Sanborn  v.  Leavitt,  43  N.  H.  473 ;  Lowry  v.  H^ll,  2  W.  &  S.  (Pa.)  131 ; 
Bell  «.  Bar tlett,  7  N.  H.  188;  Maloney  i;.  Griffin,  15  Ind.  214;  Willard  v. 
Kimball,  10  Allen.  211;  Shipman  v.  Clark,  4  Denio,  446;  Foster  v.  Petti- 
bone.  20  Barb.  350;  Stimpson  v.  Reynolds,  14  Barb.  506;  Ilsley  v.  Stubbs,  5 
Mass.  280;  Morris «.  De  Witt,  5  Wend.  71;  Rhines  v.  Phelps,  3  Gilm.  (Ill) 
455;  Spring  v.  Bourland,  G  Eng.  (Ark.)  658. 


SHERIFF   CHARGED    WITH   EXECUTION   OF   PR0CES3.  145 

confer  any  lien  on  them,  or  to  bear  any  resemblance  to  a  pro- 
ceeding in  rem^ 

§  258.  Cross-replevins  not  allowed.  Instances  have  oc- 
curred wliere  the  defendant  in  replevin  has  sought  to  forestall 
the  action  by  another  replevin  at  his  own  suit  for  the  same 
goods.  This  is  in  the  nature  of  a  cross-replevin,  which  the 
law  does  not  permit.^  Neitiier  can  a  grantee  of  the  defendant, 
after  suit  brought.  The  riglits  of  all  parties  can  be  deter- 
mined in  the  lirst  action.  This  is  now  a  statutory  provision 
in  many  States.  ^ 

§  259.  The  same.  Illustration.  A.  replevied  property  and 
obtained  possession  of  it  without  there  being  service  on  defend- 
ants. The  proceeding,  except  the  issue  of  the  writ,  was  set  aside 
by  the  court.  The  defendant  in  first  suit  sued  out  replevin 
against  plaintiff  for  same  property;  defendant  in  the  second 
suit  pleaded  general  issue  {iion  ceplt,)  and  gave  notice  that  he 
would  prove  the  pendency  of  the  first  suit,  etc.  Held^  that 
as  the  proceedings  in  the  first  suit  were  set  aside,  that  taking 
was  the  same  as  though  it  had  been  without  any  writ,  and  in 
such  case  the  second  replevin,  though  by  the  defendant  from 
the  plaintiff  in  the  former  suit,  is  not  a  cross-replevin.* 

§  260.  The  sheriff  charged  with  the  execution  of  process 
must  obey  it  at  his  peril.  It  is  an  old  and  well  established 
rule  that  a  sheriff  charged  with  the  execution  of  a  process 

•  Watkins  v.  Page,  2  Wis.  95.  Property  in  the  hands  of  the  sheriff  by- 
virtue  of  a  writ  of  replevin  is  in  the  custody  of  the  law  and  is  not  liable 
to  a  second  distress.  Milliken  n.  Seyle,  6  Hill,  623;  Gilbert  v.  Moody,  17 
Wend.  358;  Lovett  v.  Burkhardt,  44  Pa.  St.  174. 

2  Hagan  v.  Deuell,  24  Ark.  216;  Powell  v.  Bradlee,  9  Gill  &  Johnson,  220; 
Shaw  V.  Levy,  17  Serg.  &  R.  103;  Maloney  ®.  Griffin,  15  Ind.  213;  Dear- 
mon  V.  Blackburn,  1  Sneed,  (Tenn.)  390.  When  property  is  taken  by  writ 
of  replevin  the  defendant  cannot  retake  it  by  second  writ  while  the  first  is 
pending.  Ilsley  c.  Stubbs,  5  Mass.  280;  Morris  v.  De  Witt,  5  Wend.  71; 
Sanborn  «.  Leavitt,  43  N.  H.  473;  Belden  ®.  Laing,  8  Mich.  503;  Clark  tj. 
West,  23  Mich.  243 ;  Lowry  v.  Hall,  2  W.  &  S.  (Pa.)  131 ;  Hagan  v.  Deuell, 
24  Ark.  216. 

'  Hines  v.  Allen,  55  Me.  115.  A  second  suit  brought  by  the  defendant  in 
the  first  suit  and  his  partner  against  the  same  plaintiff  is  a  cross  replevin. 
Beers  v.  Wuerpul,  24  Ark.  273. 

<  Smith  V.  Snyder,  15  Wend.  324. 
10 


146  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

must  obey  its  mandates  at  his  peril.  "Where  a  writ  of  execu- 
tion or  attachment  directs  him  to  seize  upon  the  goods  of  A. 
he  must  assume  the  responsibility  of  determining  what  goods 
belong  to  A.;  and  if  he  seize  upon  the  goods  of  B.  the  writ  is 
no  protection  to  him  in  so  doing,  and  he  becomes  liable  to  B. 
in  trespass  or  replevin  at  his  election^  If  the  seizure  was 
made  with  a  deliberate  wrongful  intention  on  the  part  of  the 
officer  to  seize  the  goods  of  one  who  was  in  no  way  connected 
with  the  writ,  no  one  would  for  a  moment  attempt  to  justify 
such  a  seizure;  and  if  it  was  made  by  mistake  it  would  be 
equally  absurd  to  contend  tliat  the  blunder  of  an  officer  could 
deprive  the  real  owner  of  his  goods,  or  of  any  of  his  rights  in 
them. 2  Even  when  the  officer  does  not  remove  articles,  a  levy 
by  him  may  become  a  trespass  as  against  tlie  real  owner,  and 
render  him  liable  under  that  action;  or  the  owner  may,  if  a 
stranger  to  tlie  process,  maintain  replevin,  provided  his  pos- 
session is  taken  from  him.^ 

§  261.  The  same.  This  question  was  considered  in  a  late 
case  in  Illinois,  where  plaintiff  in  attachment,  who  had  prose- 
cuted his  suit  to  judgment,  asked  a  process  against  the  sheriff 
to  compel  him  to  sell  the  attached  property.  The  sheriff 
replied  that  it  had  been  taken  from  him  by  a  writ  of  replevin, 
describing  it.  "  Tlie  question  then  occurs,"  said  Mr.  Justice 
ScHOLFiELD,  in  delivering  the  opinion,  "is  replevin  a  proper 
remedy  against  a  sheriff  who  has  levied  a  writ  of  attachment 
against  one  person  upon  the  property  of  another,  at  the  in- 
stance of  the  party  whose  property  is  thus  wrongfully  levied 

'  Ackworth  v.  Kemp,  Douir.  (Eng.)  40;  Ralston  v.  Black,  15  Iowa,  47. 

«  Stewart  t;.  Wells,  6  Barb.  79;  Buck  v.  Colbath,  3  Wall.  (U.  S.)  334;  Allen 
V.  Crary,  10  Wend.  349;  Shipman  v.  Clark,  4  Denio,  447;  Hall  v.  Tnttle,  2 
Wend.  476;  Ilsley  v.  Stubbs,  5  Mass.  280;  Phillips  v.  Harriss,  3  J.  J.  Marsh, 
(Ky.)  121;  Caldwell  v.  Arnold,  8  Minn.  2G5;  Bradley  v.  Holloway,  28  Mo. 
150;  Drake  on  Attacliments,  §  223;  Brown  v.  Bissett,  1  Zab.  21,  (N.  J.  L.) 
268.  Where  an  officer  improperly  levies  on  property  which  does  not  be- 
long to  the  defendant  in  his  process,  the  owner  may  maintain  replevin. 
Gimble  «.  Ackley,  12  Iowa,  27.  See,  also,  Phillips  v.  Harriss,  3  J.  J.  Marsh, 
(Ky.)  124;  Smith  v.  Montgomery,  5  Iowa,  370;  Wilson  v.  Stripe,  4  Green. 
Sol ;  Miller  v.  Bryan,  3  Iowa,  58;  L.  &  Portland  Canal  v.  Holborn,  2  Blackf. 
267;  Chinn  v.  Russell,  2  Blackf.  172;  Ralston  v.  Black,  15  Iowa,  47. 

3  Gallagher  v.  Bishop,  15  Wis.  276. 


WRIT   OF    REPLEVIN.  147 

upon?  It  seems  well  settled  that  this  remedy  would  be  appro- 
priate in  such  cases,  aside  from  anything  to  be  found  in  our 
statute."! 

§  262.  Replevin  lies  for  goods  wrongfully  sold  by  sheriff 
on  execution.  AVliere  the  sheriff  seizes  and  sells  goods  not 
the  property  of  the  defendant  in  execution,  such  sale  passes 
no  title  to  the  purchaser,  and  the  owner  may  sustain  replevin 
against  him;  and,  although  it  has  been  held  that  no  demand 
is  necessary,  the  safer  way  would  be  to  make  it  before  suit.^ 

§  263.  Distinction  between  replevin  for  the  goods  and  an 
action  against  the  oflBcer  as  a  trespasser.  There  is  a  distinc- 
tion to  be  observed  in  this  connection,  between  an  action 
against  the  officer  in  trespass,  and  an  action  for  the  goods. 
An  execution  regular  on  its  face,  issued  by  a  court  of  compe- 
tent jurisdiction,  will  protect  an  officer  in  an  action  of 
trespass  brought  against  him  by  the  defendant  named  in  the 
writ,  but  it  cannot  be  made  the  basis  of  a  claim  of  right  to 
the  property,  without  proof  of  a  valid  judgment  to  sustain  it.^ 

§  264.  Writ  of  replevin.  When  and  how  far  a  protection 
to  the  officer  serving  it.  A  writ  of  replevin,  valid  on  its  face, 
is  a  perfect  protection  to  the  officer  in  taking  the  goods  fi'om 
the  possession  of  the  defendant  therein  named. ^  That  is,  it 
affords  the  ofiicer  a  definite  and  limited  protection  so  long  as 
he  proceeds  within  the  authority  which  the  law  confers  upon 
him;  but  beyond  that  the  law  does  not  in  any  way  shelter 
him. 5  "When,  therefore,  an  officer,  in  pursuance  of  the  com- 
mand of  a  writ  of  replevin  issued  from  a  competent  court  and 

'  Samuel  v.  Agnew,  80  111.  5o4.  See,  also,  Ralston  v.  Black,  15  Iowa,  48 ; 
Chinn  v.  Russell,  2  Blackf.  172;  Megee  v.  Beirni,  3  Wrighl,  (Pa.)  50;  Wood- 
rufif «.  Taylor,  20  Vt.  65 ;  Barber  v.  The  Bank,  9  Conn.  407 ;  Allen  on  Sheriff, 
272;  Gardner  v.  Campbell,  15  John.  401  ;  Judd  v.  Fo.x,  9  Cow.  259;  Louis- 
ville &  Portland  Canal  Co.  v.  Holborn,  2  Blackf.  (Ind  >  267. 

•2  Hicks  V.  Britt,  21  Ark.  422;  Coombs  v.  Gorden,  59  Me.  Ill;  Crittenden 
V.  Lingle,  14  Ohio  St.  182, 

3  Adams  v.  Hubbard,  30  Mich.  104;  Underbill  v.  Reinor.  2  Hilton,  (N.  Y  ) 
319;  Beach  v.  Botsford,  1  Doug.  (Mich.)  199;  Le  Roy  v.  East  Sag.  Ry..  18 
Mich.  233 ;  Earl  v.  Camp,  16  Wend.  563. 

'*  Clark  V.  Norton,  6  Minn.  412;  U.  S.  Dist.  Court  "VYestern  Dist.  Tcnn.; 
Waddy  Thompson,  ex  parte,  15  Am.  Law  Reg.  522. 

'  Whitney  v.  Jenkinson,  8  Wis.  408. 


148  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

valid  on  its  face,  takes  possession  of  the  property,  from  the 
defendant  named  in  the  writ,  he  is  not  liable  to  the  defendant, 
even  though  the  latter  may  be  the  real  owner  of  the  property, 
and  the  replevin  suit  be  determined  in  his  favor.  The  failure 
of  the  plaintiff  in  replevin  to  make  out  his  case  cannot  render 
the  officer  liable  to  the  defendant  in  damages. ^  But  the  pro- 
tection afforded  the  officer  does  not  by  any  means  extend  to 
the  party  who  has  procured  the  writ  to  issue. 2 

§  265.  Whether  the  writ  authorizes  a  seizure  of  the  goods 
from  a  stranger.  Whether  the  writ  will  protect  the  officer  in 
taking  the  goods  from  the  possession  of  one  who  is  a  stranger 
to  it,  is  a  question  upon  which  there  is  some  difference  of 
opinion.  The  wi*it  of  replevin  commands  the  officer  to  take 
certain  articles  which  are  particularly  described.  In  case 
these  articles  are  found  in  the  hands  of  the  defendant  named 
in  the  writ,  no  question  can  arise;  but  if  they  are  found  in  the 
hands  of  one  who  is  not  a  party  to  the  writ,  but  who  has  pos- 
session and  claims  to  own  them,  the  case  presents  more 
difficulties. 3  In  Xew  York,  before  the  code  was  passed,  the 
form  of  the  writ  required  the  officer  to  take  the  property  if  it 
could  be  found  in  the  county,  and  provisions  were  made  for 
the  arrest  of  the  defendant  in  case  the  goods  were  not  found. 
Under  such  a  statute  the  officer  was  not  liable  as  a  trespasser 
for  seizinof  the  jroods  wherever  found.^     But  under  a  subse- 

1  Williard  v.  Kimball,  10  Allen,  (Mass.)  211 ;  AVeinberg  v.  Conover,4  Wis. 
803;  Sbipman  v.  Clark,  4  Denio,  416;  Stimpson  v.  Reynolds,  14  Barb.  508; 
Foster  v.  Pettibone,  20  Barb.  350;  Watkins  v.  Page,  2  Wis.  97. 

2  Ex  parte  Waddy  Thompson,  15  Am.  Law  Reg.  522. 

3  The  ancient  case  of  Ilallett  v.  Byrt,  Carth.  380,  says:  "  There  is  a  dif- 
ference  between  replevin  and  other  process.  In  replevin  the  officer  is 
expressly  commanded  to  take  property,  but  in  an  execution  he  is  com- 
manded to  take  the  goods  of  the  party,  which  the  officer  serving  must  do 
at  his  peril."  S.  C,  1  Ld.  Raym.  218— Skiun.  674.  (The  several  reports  do 
not  agree.  I  cite  the  report  as  in  Carth.)  This  case  has  been  cited  and 
approved  in  many  modern  cases.  Shipman  v.  Clark,  4  Denio,  447  ;Watkins 
V.  Page,  2  Wis.  97 ;  Spencer  v.  M'Gowen,  13  Wend.  256 ;  Silsbury  v.  McCoon, 
4  Denio,  332;  Griffith  v.  Smith.  22  Wis.  647;  Battis  v.  Hamlin,  22  Wis,  669; 
Foster  v.  Pettibone,  20  Barb.  350;  Shawv.  Coster,  8  Paige,  (N.  Y.)  344. 

*  King  V.  Orser,  4  Duer.  436.  See  Foster  v.  Pettibone,  20  Barb.  350; 
Shipman  v.  Clark,  4  Denio,  446.  Consult  Buck  v.  Colbath,  3  Wall.  (U.  S.) 
834. 


WHETIIEE   THE    WRIT   AUTHORIZES   A    SEIZURE.  140 

qnent  statute,  it  was  held  that  an  oflicer  was  not  protected  by 
a  writ  of  replevin  in  taking  property  from  a  third  person 
claiming  to  own  it,  even  though  the  goods  were  the  specitic 
chattels  which  the  writ  directed  hira  to  take;!  and  this  doc- 
trine is  fully  sustained  by  subsequent  cases.2  Both  these  cases 
hold  that  the  writ  is  no  protection  to  an  officer  in  takino- 
goods  from  the  possession  of  one  not  a  party  to  it. 

§  266.  The  same.  One  of  the  best  considered  cases  on  this 
sul)ject  is  found  in  Ohio.  The  conclusion  there  reached  is, 
that  an  officer  has  no  right  to  take  goods  described  in  a  writ 
of  replevin  from  tlie  possession  of  a  person  not  named  in  the 
process.  It  is  important  to  observe,  says  the  court,  in  sub- 
stance, that  while  the  rights  of  the  defendant  are  sedulously 
guarded  by  a  bond  required  from  the  plaintiff,  no  guard  or 
protection  is  afforded  to  the  rights  of  third  persons,  and  that 
unlike  proceeding  strictly  in  rem,  as  in  admiralty  or  chancery, 
where  the  officer  is  directed  to  take  possession  of  specific 
property,  that  the  rights  of  the  several  claimants  may  be  ascer- 
tained, the  property  is  not  retained  in  the  possession  of  the 
officer,  but  is  delivered  to  the  claimant,  and  no  provision  is 
made  for  third  persons  to  come  in  and  assert  their  claims. ^ 
A  very  similar  line  of  reasoning  was  followed  in  Maine,  where 
the  court  held  that  replevin  could  only  be  maintained  ao-ainst 
the  person  having  possession  of  the  goods. *  But  there  is  no 
authority  for  saying  that  bare  possession,  by  a  stranger,  of  the 
goods  described  in  the  writ  ought  to  deter  the  sheriff  from 
making  the  delivery,  when  it  is  apparent  that  they  really  belono- 
to  the  defendant  in  the  process.  The  sound  discretion  of  the 
officer  is  called  largely  into  use.  If  the  property  desci'ibed  in 
the  writ  has  been  recently  in  the  hands  of  the  defendant  named, 
and  he,  for  fraudful  purposes,  puts  it  in  the  hands  of  another, 
in  anticipation  of  the  writ,  and  for  the  purpose  of  defeating  it, 
such  facts  would  probably  go  far  to  justify  the  officer  in  seizin  (>• 
the  goods  from  such  third  party.     If,  however,  the  goods  had 

'  Stimpson  v.  Reynolds,  14  Barb.  506. 

'  Biillis  -y.  Montgomery,  50  K  Y.  353;  Otis  v.  "Williams,  70  N.  Y.  208. 

^  State  '0.  Jennings,  14  Ohio  St.  73. 

*  liamsdell  v.  Buswell,  54  Me.  546.     See  Willard  v.  Kimball,  10  Allen,  201. 


150  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

never  been  in  the  possession  of  tlie  defendant  in  the  writ,  but 
liad  for  a  long  period  been  in  the  liands  of  another  claiming  to 
own  them,  the  officer  would  unquestionably  be  justified  in  re- 
fusing to  dispossess  such  third  party  under  a  writ  in  which  he 
was  not  named,  If  he  assume  to  serve  the  writ  he  must  show 
that  the  goods  were  actually  the  property  of  the  defendant 
named  in  his  process,^  and  must  take  the  risk  of  a  suit  for 
trespass,  against  which  he  ought,  when  his  act  has  been  in 
good  faith,  to  be  fully  indemnified  by  the  party  in  whose 
interest  he  acts. 

§  267.  Writ  of  retorno  authorizes  seizure  only  from  the  per- 
son named.  When  a  writ  of  retorno  issues,  the  sheriff  cannot 
take  the  property  from  any  other  person  than  the  one  named 
in  the  writ.  2 

§  268.  Replevin  lies  for  exempt  property  wrongfully  seized. 
There  exists  in  many,  if  not  all  the  States,  statutory  provisions 
exempting  a  certain  amount  in  value  of  property,  or  certain 
specific  articles,  from  levy  and  sale  upon  execution.  As  to 
such  property,  the  rule  is,  that  notwithstanding  there  may  be 
a  judgment  and  execution  against  the  defendant,  valid  in  all 
respects,  and  sufficient  to  authorize  the  seizure  of  property 
of  the  debtor  not  exempt;  as  to  exempt  property,  he  is  by  law 
])rivileged  to  retain  it,  notwithstanding  the  execution;  and  if 
an  officer,  disregarding  such  exemption,  seize  upon  the  prop- 
erty, the  debtor  may  assert  his  right  in  replevin  for  the  goods, 
or  in  an  action  against  the  officer  for  their  value.^ 

'  Hilliard  on  Torts,  194;  Crosby  v.  Baker,  6  Allen,  (Mass.)  295;  Common- 
wealth x>.  Kennard,  8  Pick.  133 ;  Brush  t).  Fowler,  36  111.  59 ;  Jansen  v.  Acker, 
23  Wend.  480;  Perkins  v.  Thornburg,  10  Cul.  189. 

•^  Lear  v.  Montross,  50  111.  509. 

3  Wilson  t.  McQueen.  1  Head.  (Tenn.)  17;  Bean  v.  Hubbard,  4  Cush.  86. 
A  non-resident  cannot  assert  this  privilege.  Newell  v.  Hayden,  8  Iowa,  140 ; 
Sims  «.  Reed,  12  B.  Mon.  53;  Moseley  w.  Andrews,  40  Miss.  55;  Wilson  v. 
McQueen,  1  Head.  (Tenn.)  16;  Elliott  u.  Whitmore,  5  Mich.  532;  Wilson  v. 
Stripe,  4  G.  Greene,  (Iowa,)  551;  Lynd  ■».  Picket,  7  Minn.  184;  Douche. 
Rahner,  61  Ind.  64.  Dental  tools  held  mechanical  tools,  and  exempt  as 
such.  Maxon  c.  Perrott,  17  Mich.  333.  Whether  the  articles  claimed  as 
tools  are  necessary  as  tradesman's  tools,  and  for  that  reason  exempt,  is  a 
question  for  the  jury  to  determine.  A  judgment  and  order  to  sell  exempt 
l)r()perty  is  no  bar  to  an  action  of  replevin  ;  but  the  replevin  of  the  property 
will  not  avoid  the  judgment.    Wilson  v.  Stripe,  4  G.  Greene,  (Iowa,)  551. 


EXEMPTION   A    PERSONAL    PRIVILEGE.  151 

§  269.  The  aid  of  the  statute  must  be  invoked.  An  officer 
with  execution  is  not  bound  to  consult  with  the  execution 
debtor  as  to  what  property  is  exempt,  but  he  may  seize  and 
proceed  to  sell  any  or  all  the  debtor's  propej-ty  upon  which  he 
can  lay  his  hands;i  and  if  the  debtor  desires  the  protection  of 
the  statute,  he  must  invoke  its  aid.  It  does  not  operate  uidess 
its  shelter  is  sought.  When  exempt  property  is  levied  on,  the 
debtor  ought,  at  the  time,  or  seasonably  thereafter,  to  specially 
claim  the  benefit  of  the  exemption;  he  cannot  sustain  replevin 
for  property  he  has  not  selected  and  claimed  as  exempt. ^  So, 
when  a  certain  amount  of  a  particular  kind  of  property  is  ex- 
empt, the  debtor  must  select  and  claim,  or  in  some  lawful 
manner  assert  his  rights.  If  the  sheriff  levy  execution  on 
the  whole  of  that  class  of  property,  the  debtor  cannot  sustain 
replevin  until  he  select  and  demand  the  exempted  portion.' 
A  waiver  of  exemption  in  favor  of  one  creditor  .cannot  be 
taken  advantage  of  by  another.*  Nor  will  a  mortgage  be  a 
waiver  of  the  right  to  claim  property  as  exempt,  except  as 
against  the  mortgagee.  *  Under  a  statu  te  which  exempts  swine, 
the  flesh  of  such  swine,  when  killed  and  dressed,  is  also  exempt.^ 
So  of  butter  made  from  a  cow  which  is  exempt.'  But  hay  or 
grain  exempted  for  the  purpose  of  feeding  domestic  animals 
is  not  exempt  unless  the  party  claiming  it  has  the  animals.^ 

§270.  The  exemption  a  personal  privilege.  This  exemption 
of  property  from  forced  sale  on  execution  is  a  personal  privilege, 
and  must  be  exercised  by  the  debtor  personally,  or  it  will  be  re- 
garded as  waived.^  In  replevin  against  the  sheriff,  the  plain- 
tiff claimed  a  span  of  horses,  by  purchase  from  B.     The  sheriff 

>  Twinam  v.  Swart,  4  Lans.  (N.  Y.)  263. 

•  O'Donnell  v.  Seger,  25  Mich.  371 ;  Seaman  v.  Luce,  23  Barb.  240.  As  to 
the  practice,  see  Newell  v.  Hayden,  8  Iowa,  140.  But,  see  Frost  v.  Molt,  34 
N.  Y.  253. 

»  TuUisfl.  Orthwein,  5  Minn.  377. 

•  Frost  V.  Mott,  34  N.  Y.  253. 

»  Reynolds  ».  Salee,  2  B.  Mon.  (Ky.)  18. 

•  Gibson  v.  Jcnncy,  15  Mass.  206. 

'  Leavitt?;.  Metcalf,  2  Vt.  342;  Haskill  v.  Andros,  4  Vt.  610. 
«  Foss  V.  Stewart,  14  Me.  312. 

»  Bonsall  v.  Comly,44  Pa.  St.  442;  Mickes  v.  Tousley,  1  Cow.  114;  Earl 
V.  Camp,  16  Weud.  502. 


152  GOODS   IN   THE    CUSTODY    OF    THE   LAW. 

replied  tliat  lie  had  seized  them  on  an  execution  against  C,  and 
that  they  were  B.'s  property.  The  plaintiff  asked  the  court 
to  instruct  the  jury  that,  "  under  the  laws,  one  span  of  horses 
was  exempt,  and  that  if  B.  had  no  other  horses  than  these, 
which  were  exempt,  the  defense  of  the  sheriff  would  fail." 
The  court  properly  refused  the  instruction.  Tiie  exemption 
was  the  personal  privilege  of  the  debtor,  and  might  be  waived 
by  him,  and  if  so  waived,  it  could  not  be  asserted  by  another.^ 

§  271.  The  same.  Damages  and  costs  in  such  cases. 
"While  the  rule  which  permits  replevin  for  property  by  law 
exempt  is  supported  by  abundant  authority,  it  has  been  said 
that  neither  damages  nor  costs  should  be  awarded  in  such 
cases ;2  but  this  does  not  seem  to  rest  on  any  well  founded 
reason.  The  sheriff  who  willfully  or  ignorautly  takes  prop- 
erty in  defiance  of  the  law,  should  respond  to  the  injured 
party  in  compensatory  damages,  at  least. ^ 

§  272  Jurisdiction  in  replevin,  where  goods  have  been 
wrongfully  seized.  When  goods  have  been  wrongfully  seized 
by  an  officer  upon  process,  and  the  owner  desires  to  contest  the 
validity  of  the  seizure,  the  question  arises,  in  what  court  shall 
his  suit  be  brought?  There  may  be  a  court  competent  to  take 
jurisdiction  over  the  subject  matter  of  the  controversy,  as  well 
as  the  person  of  the  defendant,  within  easy  access;  while  the 
court  from  which  the  process  issued,  upon  which  the  wrongful 
seizure  was  made,  may  be  distant  and  difficult  of  access. 
"Whether  any  exclusive  jurisdiction  attaches  to  this  latter  court 
may  be  a  question  of  importance.  There  appears  to  be  no 
good  reason  why  the  court  issuing  the  process,  behind  which 
the  officer  assumes  to  shelter  himself,  should  alone  have  juris- 
diction in  such  cases.  Upon  process  of  attachment  issued  from 
the  Superior  Court  of  Cook  County,  the  sheriff  levied  upon 
goods  which  were  afterwards  replevied  from  him  by  the  owner, 
(who  was  not  the  defendant  in  the  attachment,)  upon  a  writ 
of  replevin  issued  out  of  the  Circuit  Court  of  Cook  County. 

'  Howland  v.  Fuller,  8  Minn.  50. 
»  SaQ'ell  V.  Walsh.  4  B.  Mon.  (Ky.)  92. 

«  Pozzoni  ■».  Henderson,  2  E.  D.  Smith,  146;  Whitaker  v.  Wheeler,  44  111. 
447;  Livor  v.  Orser,  5  Duer.  501. 


EULE  IN  FREEMAN  V.  HOWE.  153 

Tlie  court  said,  "  there  is  no  apparent  reason  why,  if  the  action 
of  replevin  miglit  be  brought  in  the  Superior  Court  of  Cook 
County,  it  might  not,  with  equal  propriety,  be  brought  in  the 
Ciicuit  Court  of  that  county,  which  is  practically  a  branch  of 
the  same  court."i  The  court,  however,  in  this  case,  cites  Tay- 
lor et  al.  V.  Carrrjl,  20  How.  (U.  S.)  583,  and  Freeman  v.  Jlowe^ 
24  How.  450,  and  seems  to  recognize  the  doctrine  that  when 
goods  are  in  the  custody  of  the  officer  of  a  United  States  court, 
under  its  process,  they  cannot  be  taken  by  process  from  a  State 
court. 

§  273.  The  same.  The  question  stated.  It  is  nnquestion- 
ably  the  law,  that  when  goods  are  rightfully  in  the  custody  of 
an  officer  of  the  United  States  court,  under  judicial  process 
from  such  court,  replevin  will  not  lie  to  dispossess  him;  but 
where  an  officer  assumes  to  take  goods,  in  violation  of  the  com- 
mands of  his  writ,  he  cannot  be  said  to  take  them  by  virtue 
of  the  process  of  the  court.  On  the  contrary,  all  the  authori- 
ties agree  that  an  officer  so  holding  is  a  trespasser.  His  hold- 
ing is,  in  fact,  a  disobedience  of  the  mandate  of  the  court,  and 
he  is  personally  liable  to  the  injured  party.  This  presents  the 
question,  as  to  whether  a  party  whose  property  has  been  wrong- 
full}^  taken  by  an  officer  of  the  United  States,  on  process  from 
a  federal  court,  can  employ  the  officers  and  process  of  the  State 
courts  to  recover  it. 

§  274.  The  rule  in  Freeman  v.  Howe.  The  leading  case 
on  this  subject  is  Freeman  v.  Howe,  which  originated  in  a  State 
court  in  Massachusetts,  and  was  subsequeutly  passed  upon  by 
the  Supreme  Court  of  the  United  States.  Process  of  attach- 
ment in  a  suit  for  debt  was  issued  from  a  United  States  Court 
to  its  marshal,  commanding  him  to  attach  the  property  of  tlie 
Vermont  &  Massachusetts  R.  K.  Co.  Upon  that  process  the 
marshal  seized  upon  thirteen  cars,  which  were  afterwards  re- 
plevied upon  a  writ  issued  from  a  State  court  in  Massachusetts. 
Upon  the  trial,  the  marshal  contended  that  the  property  was 
taken  by  him  under  process  from  the  United  States  court,  and 
that  replevin  in  a  State  court  would  not  lie.  Dp:wey,  J.,  in  de- 
livering the  opinion  of  the  appellate  court  in  Massachusetts, 

»  Samuel  v.  Agaew,  80  111.  554. 


154  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

said:  "These  articles  were  not  seized  for  the  purpose  of  being 
proceeded  against  in  tlie  courts  of  the  United  States  by  any 
proceeding  in  rein.  They  were  not  the  subject  of  the  case 
then  to  be  tried.  The  process  from  the  United  States  court 
was  that  usually  issued  for  the  recovery  of  a  debt,  unaccompa- 
nied by  any  lien  or  charge  upon  the  goods,  except  that  result- 
ing from  an  attachment  to  secure  an  alleged  debt.  The  only 
process  to  the  marshal  was  one  commanding  him  to  attach  the 
property  of  the  Yermont  &  Massachusetts  R.  R.  Co.;  not  a 
warrant  to  seize  these  cars."  And  upon  this  reasoning  the 
court  held  that  replevin  in  a  State  court,  by  the  real  owner, 
against  the  marshal,  was  proper,  i  The  case,  however,  went  to 
the  United  States  Supreme  Court,  and  the  decision  of  the  State 
court  was  reversed;  the  reversal  being  placed  upon  the  ground 
that  the  right  of  the  defendant,  the  marshal,  to  hold  the  goods 
was  a  question  belonging  to  tlie  federal  court,  under  wliose 
process  they  were  seized,  and  that  there  was  no  authority  iu 
an  officer,  under  process  issued  from  a  State  court,  to  inter- 
fere with  property  which  had  been  seized  by  a  marshal  under 
process  from  a  United  States  court.^ 

§  275.  The  doctrine  in  this  case  considered.  This  decision 
has  not  provoked  the  discussion  which  it  would  certainly  have 
occasioned  had  it  been  a  similar  opinion  from  any  other  court. 
The  bare  authority  of  the  Supreme  Court  of  the  United  States 
being  a  sufficient  reason  for  avoiding  all  question  as  to  its  cor- 
rectness. The  reasoning  has,  nevertheless,  been  criticized  in  a 
number  of  cases  in  the  State  courts,  and  explained  at  least 
once  in  the  United  States  Supreme  Court.  Mr.  Justice  Paine, 
of  "Wisconsin,  remarks,  "that  the  conclusions  of  the  court,  (in 
Freeman  v.  Ilowe^  do  not  appear  to  be  based  upon  any  effect 
given  to  any  provision  of  the  constitution  or  laws  of  the 
United  States,  so  that  its  decision  would  not,  according  to  the 
prevailing  opinion,  be  binding  in  the  State  courts;  but  it  seems 
to  rest  upon  grounds  of  comity."  And  while  the  doctrine  in 
that  case  is  followed, ^  it  is  with  doubt  and  misgiving  as  to  the 

'  Howe  V.  Freeman,  14  Gray,  (Mass.)  573. 

«  Freeman  v.  Howe  et  al.,  24  How.  (U.  S.)  450. 

»  Kinney  v.  Crocker,  18  Wis.  79    See  Buck  v.  Colbath,  7  Minn.  310. 


THE    DOCTRINE    IN    THIS   CASE    CONSIDERED.  155 

correctness  of  the  principle.  In  Minnesota,  in  replevin  from 
a  United  States  marshal,  the  answer  of  the  marshal  denied  the 
plaintiff's  riglit,  and  set  up  that  the  defendant,  a  United  States 
marshal,  held  a  valid  writ  of  attachment  against  the  goods  of 
L. ;  that  he  levied  on  the  goods  as  the  property  of  L.  and 
that  they  were  his  property,  and  demanded  a  return.  To  this 
plea  there  was  no  answer,  and  the  court  said  the  case  stands 
admitted  for  want  of  an  answer.  The  court,  in  delivering  its 
opinion,  cited  the  case  o^ Freeman  Y.IIowe,  and  said:  "  If  we 
understand  this  decision,  it  is  based  upon  the  sole  ground  that 
one  court  cannot  take  the  property  from  the  custody  of  another 
by  replevin,  or  any  other  process;  for  this  would  produce  a  con- 
flict extremely  embarrassing  to  the  administration  of  justice. 
"Whether  this  evil  may  be  greater  than  that  of  always  compel- 
ling a  party  to  resort  to  the  court  out  of  which  the  process 
issued,  upon  which  his  property  has  been  seized,  to  assert  his 
legal  rights,  may  well  be  questioned.  *  *  *  It  cannot  be 
denied  but  that  there  are  expressions  and  statements  in  the 
opinion  in  Freeman  v.  Howe  which  would  lead  to  the  conclu- 
sion that  the  court  in  that  case  reversed  the  decision  of  the 
State  court  upon  the  ground  that  the  State  court  had  not  juris- 
diction of  the  case,  but  we  think  not.  *  *  *  Conceding, 
therefore,  the  correctness,  or,  at  least,  the  binding  force  of  the 
decision  in  Freeman  v.  Ilowey  we  think  the  judgment  must  be 
for  a  return."  1 

§  276.  The  same.  The  same  court  had  the  question  before 
it  again,  where  it  employed  the  following  reasoning:  "  If 
there  is  any  principle  of  law  which  may  be  considered  as 
settled  by  a  long  series  of  uniform  decisions,  it  is,  that  he, 
whether  an  officer  of  the  law  or  otherwise,  who  takes  the 
property  of  another  without  authority,  is  a  wrong-doer,  and 
the  taking  is  wrongful.  *  *  *  The  only  approach  to  any 
innovation  upon  this  rule,  so  far  as  we  are  aware,  by  the  courts 
of  this  country,  is  the  case  o^  Freeman  v.  Ilov^e,  24  How.  (U. 
S.)  450.  Even  though  the  officer  acted  upon  the  fullest 
knowledge  and  information  obtainable,  as  to  the  ownership  of 
the  property,  and  that  he  fully  and  honestly  believed,  and  had 

*  Lewis  fl.  Buck,  7  Minn.  104. 


156  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

good  reason  to  believe,  tliat  the  property  was  the  property  of 
the  defendant,  and  that  he  was  in  duty  bound  to  levy  on  it,  it 
is  no  defense.  The  law  has  not  left  the  rights  of  property  and 
the  protection  aiforded  thereto  to  depend  on  the  mere  belief 
or  good  faith  of  the  officer  holding  process;  nor  will  his  good 
faith  protect  him  from  the  consequences  of  his  illegal  acts. 
The  sheriff,  when  he  levies  on  property,  must  do  so  at  his  own 
risk,  and  if  he  seizes  property  not  authorized  by  his  process, 
he  is  a  trespasser." ^  In  Wisconsin,  the  doctrine  was  distinctly 
stated,  that  when  property  exempt  from  seizure  by  the  laws 
of  the  State,  was  seized  by  a  United  States  officer,  for  debt, 
replevin  would  lie  in  the  State  court.  It  was  claimed  in  this 
case  that  the  horses  were  taken  and  held  by  virtue  of  an  exe- 
cution issued  out  of  the  District  Court  of  the  United  States, 
and  hence  were  in  the  custody  of  the  law.  "But  how  could 
they  be  in  the  custody  of  the  law  unless  the  marshal  had  a 
lawful  right  to  take  them  into  his  custody?  The  idea  that  an 
unlawful  custody  of  property  can  be  the  custody  of  the  law 
is  absurd."2 

§  277.  The  same.  While  the  case  of  Freeman  v.  Howe 
may  be  regarded  as  a  decision  of  this  question  by  the  court 
of  the  last  resort,  the  reasoning  of  the  court  and  the  conclu- 
sions arrived  at  do  not  produce  that  conviction  of  the  sound- 
ness of  the  doctrine  laid  dov/n  which  usually  follows  the 
opinion  of  that  eminent  tribunal.  It  seems  to  be  in  conflict 
with  the  earlier  case  of  Slocum  v.  Mayherry^  2  Wheat.  2.  It 
is  difficult  to  see  where  any  material  inconvenience  would 
follow  the  enforcement  of  a  contrary  rule;  while  it  is  apparent 
that  the  practical  operation  of  the  rule  as  laid  down  is  to 
permit  an  officer  with  process  of  execution  or  attachment 
against  A.  either  ignorantly  or  willfully  to  seize  on  the  goods 
of  B,,  and  to  compel  the  real  owner  to  submit  to  their  loss,  or 
be  at  the  vexation  and  expense  of  a  resort  to  a  distant  court. 

>  Caldwell  v.  Arnold,  8  Minn.  265. 

2  Oilman  v.  Williams  et  al.,  7  Wis.  329.  See  the 'case  of  Booth  v.  Able- 
man,  which  appeared  in  16  Wis.  4G3,  and  again  in  18  Wis.  490,  and  in  20 
Wis.  23  and  6o3;  Ward  v.  Henrj',  19  Wis.  77;  Weber  v.  Henry,  16  Mich. 
399 ;  Hauna  v.  Steinberger,  6  Black,  521. 


THE    DOCTEINE    IN   THIS   CASE    CONSIDERED.  157 

§  278.  The  same.  From  the  time  of  tlie  case  of  JJallet  v. 
Byrt,  Carth.  380  (A.  D.  1687),  until  the  present  day,  the 
courts  have,  witliout  an  exception  (unless  it  be  in  Freeman  v. 
Howe),  sustained  the  doctrine  promulgated  in  that  ancient  case, 
that  where  the  sheriif  by  process  of  execution  or  attachment  is 
directed  to  levy  on  the  goods  of  the  defendant  in  the  process, 
and  this  he  must  do  at  his  own  peril,  not  at  the  peril  of  the 
owner  of  the  goods.  Another  and  serious  embarrassment 
which  seems  to  gi'ow  out  of  the  enforcement  of  the  rule  as  Uiid 
down  in  the  case  of  Freeman  v.  Howe,  is  that  it  draws  into  the 
Federal  courts  all  litigation  in  respect  to  the  title  to  property 
attached  by  the  United  States  Marshal,  tliough  between 
strangers  to  the  attachment  suit  and  although  involvino'  the 
adjudication  of  mere  legal  claims  between  citizens  of  the  same 
State,  which  the  Constitution  designed  to  exclude  from  Federal 
jurisdiction. 

§  279.  The  same.  Slocum  v.  Maylerry,  2  "Wheat.  2,  was 
a  case  where  a  ship  was  seized  for  a  suspected  violation  of  law; 
the  cargo  was  taken  with  the  ship  and  detained  by  the  United 
States  officer;  the  owner  of  the  cargo  brought  replevin  in  the 
State  court  of  Kliode  Island,  and  was  sustained  by  the  United 
States  Supreme  Court.  Chief  Justice  Marshall,  delivering 
the  opinion  of  the  court,  said:  "The  cargo  remained  in  tlie 
custody  of  the  oiBcer  because  it  had  been  placed  on  a  vessel  in 
his  custody,  but  no  law  prevents  it  being  taken  out  of  the 
vessel.  The  owner  has  the  same  right  to  his  cargo  that  he 
has  to  any  other  property,  consequently  he  may  demand  it 
from  the  officer  in  whose  possession  it  is,  that  officer  having 
no  legal  right  to  withhold  it  from  him;  and  if  it  be  withheld 
he  has  a  right  to  appeal  to  the  laws  of  his  country  for  relief. 
The  acts  of  Congress  neither  expressly  nor  by  implication 
forbid  the  State  court  to  take  cognizance  of  suits  instituted 
for  property  in  the  possession  of  an  officer  of  the  United 
States,  not  detained  under  some  law  of  the  United  States, 
consequently  the  jurisdiction  remains.  Had  the  replevin 
been  for  the  vessel,  which  was  detained  by  the  authority  of 
the  law  of  the  United  States,  the  case  would  have  been 
entirely  different." 


158  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

§  280.  The  same.  Chancellor  Kent  lays  down  the  law  that 
if  a  marshal  of  the  United  States,  under  an  execution  against 
A.,  should  seize  the  property  of  B.,  then  the  State  courts  have 
power  to  restore  the  property  so  illegally  taken.'  This  state- 
ment is,  in  the  opinion  of  Freeman  v.  Howe,  24  How.  459, 
said  to  be  "an  error  into  which  the  learned  chancellor  fell, 
from  not  being  practically  familiar  with  the  jurisdiction  of 
the  Federal  courts."  But  the  opinion  of  Chief  Justice  Mar- 
SHALr.,  in  the  case  before  cited,  seems  in  substantial  principles 
to  sustain  the  statements  of  the  chancellor.  Davidson  v. 
Waldron,  31  111.  121,  was  an  action  of  trover,  where  David- 
son, with  others,  sought  to  recover  the  value  of  lumber  which 
he  alleged  was  levied  upon  by  liimself  as  United  States  Marshal. 
The  defendants  resisted  on  the  ground  of  the  insufficiency  of 
the  levy,  and  this  was  objected  to  by  Davidson  on  the  ground 
that  the  validity  of  the  levy  could  not  be  enquired  into  in  the 
State  court;  but  the  court  said  that  the  remedy  was  sought  by 
the  party  as  an  individual,  not  as  an  officer  of  court.  "There 
is  no  principle  of  law  which  renders  writs  issued  by  United 
States  courts,  or  the  acts  of  officers  claiming  to  act  under  sucli 
writs,  invulnerable  to  criticism  in  the  State  courts."  And  this 
appears  to  offer  a  solution  of  the  question.  An  officer  of  the 
United  States  court  ought  not  to  have  any  special  privilege  to 
commit  trespass. 

§  281.  The  same.  Bud'  v.  Colhath,  3  "U^al.  (U.  S.)  334, 
was  an  action  of  trespass  originally  begun  in  a  State  court  in 
Minnesota.  The  defendant  pleaded  that  he  was  a  United 
States  Marshal  for  the  District  of  Minnesota;  that  a  writ  of 
attachment  came  to  his  hands,  and  that  he  levied  on  goods, 
for  the  taking  of  which  he  was  sued  by  Colbath,  but  he  did 
not  in  his  plea  aver  that  the  goods  were  the  property  of  the 
defendant  in  the  attachment.  The  plaintiff  had  judgment  in 
the  State  court,  and  the  case  was  taken  to  the  United  States 
Supreme  Court,  under  Sec.  25,  of  the  judiciary  act  of  the 
United  States.  Mr.  Justice  Miller,  in  delivering  the  opinion 
of  the  latter  court,  says:  "  The  decision  in  Freeman  v.  Iloioe^ 
took  the  profession  generally  by  surprise,  overruling  as  it  did, 

'  1  Kent  Com.  410,  citing  Slocum  v.  Mayberry,  supra. 


THE   DOCTRINE   IN   THIS   CASE    CONSIDEKED.  159 

the  nnanimons  opinion  of  the  Supreme  Court  of  Massachu- 
setts, as  well  as  the  opinion  of  Chancellor  Kent,"  The  court, 
however,  follows  the  doctrine  in  Freeraan  v.  Howe,  alleging 
as  a  reason,  that  a  departure  from  the  rule  in  that  case  would 
lead  to  the  utmost  confusion  and  endless  strife.  The  court 
further  says  substantially,  that  property  may  be  siezed  by  an 
officer  of  court  under  a  variety  of  writs.  These  may  be 
divided  into  two  classes:  1st,  Those  in  which  the  process  or 
order  of  the  court  describes  the  property  to  be  seized  and 
which  contain  a  direct  command  to  the  officer  to  take  posses- 
sion of  that  particular  property.  Of  this  class  are  the  writ 
of  replevin  at  common  law,  orders  of  sequestration  in  chan- 
cery, and  nearly  all  the  processes  of  the  admiralty  courts  by 
which  the  res  is  brought  before  it  for  its  action.  2d,  Those 
in  which  the  officer  is  directed  to  levy  the  process  on  the 
property  of  one  of  the  parties  to  the  litigation,  sufficient  to 
satisfy  the  demand  against  him,  without  describing  any  par- 
ticular property  to  be  thus  taken.  Of  this  class  are  the  writ 
of  attachment,  or  other  mesne  process,  by  which  the  property 
is  seized  before  judgment,  and  the  final  process  of  execution, 
elegit,  or  other  writ  by  which  an  ordinary  judgment  is  carried 
into  effect.  It  is  obvious,  on  a  moment's  reflection,  that  the 
claim  by  the  officer  executing  these  writs  to  the  protection  of 
the  courts  from  whence  they  issue,  stand  upon  very  different 
grounds  in  the  two  classes.  In  the  first  class,  he  has  no 
discretion  to  use,  no  judgment  to  exercise,  no  duty  to  per- 
form but  to  seize  the  property.  And  if  the  court  had  juris- 
diction, and  the  process  \vas  valid  on  its  face,  and  the  officer 
had  kept  himself  within  the  mandatory  clause  of  the  writ,  it 
is  a  complete  protection  in  all  courts.  In  the  other  class  of 
cases,  the  officer  has  a  large  and  important  field  for  the 
exercise  of  his  discretion.  1st,  In  determining  that  the  prop- 
erty on  which  he  proposes  to  levy  is  the  property  of  the  person 
against  whom  the  writ  is  directed.  2d,  That  it  is  subject  to 
levy,  etc.  So  where  the  action  was  trespass  in  the  State  court 
against  the  Marshal  for  wrongful  levy  of  an  attachment  issued 
from  the  Federal  courts,  the  court  said  there  was  nothing  in 
the  fact  that  the  writ  issued  from  the  Federal  court,  to  prevent 


160  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

the  Marshal  from  being  sued  in  the  State  court  for  his  own 
tort  for  levying  on  property  of  a  person  not  named  in  the 
writ.  Among  courts  of  concurrent  jurisdiction,  that  one 
which  first  obtains  jurisdiction  has  the  exclusive  right  to 
decide  every  question  in  the  case,  but  this  ojily  extends  to 
suits  between  the  same  parties  or  persons  seeking  the  same 
relief,  and  does  not  affect  the  parties  so  far  as  other  and  dis- 
tinct relief  is  concerned,  nor  does  it  affect  strangers  to  the 
proceeding.  1 

§  282.  The  same.  Apart  from  the  eminent  authority  of 
the  cases  in  conflict  with  tiie  doctrine  laid  down  in  FTeeman 
V.  Howe,  24  How.  450,  the  principles  of  the  law  which  have 
been  recognized  since  the  earliest  consideration  of  this  ques- 
tion, warrant  the  conclusion  that  where  an  officer  with  process 
commanding  him  to  take  the  goods  of  A.,  does  with  a  willful 
and  deliberate  purpose  of  oppression,  take  the  goods  of  B.,  the 
writ  is  no  protection  to  him  in  his  willful  trespass;  or,  where 
an  officer  with  such  process  ignorantly  or  carelessly  levies  on 
the  property  of  a  stranger  to  the  writ,  it  affords  him  no 
justification,  or  confers  any  right  or  title  to  the  property. 
That  in  either  of  these  cases,  the  outraged  owner  may  pi-oceed 
against  the  wrong  doer  personally,  and  in  such  case  he  cannot 
plead  license  from  any  court  whose  authority  he  has  abused 
and  whose  mandate  he  has  disobeyed.  The  principles  gath- 
ered from  these  cases  seem  to  be  in  conflict,  but  the  task  of 
harmonizing  them  must  be  left  to  future  consideration  of  the 
courts.  Whether  the  State  courts  will  feel  bound  to  follow 
the  ruling  of  the  United  States  court  upon  this  question, 
which  does  not  involve  the  construction  of  the  Constitution, 
or  any  of  the  laws  of  the  United  States,  is  a  question  upon 
which  different  courts  will  be  likely  to  entertain  different 
views.2 

§  283.  The  power,  duty  and  responsibility  of  the  sheriff  in 
serving  the  writ  of  replevin.  The  responsibilities  of  the  sher- 
iff in  serving  the  writ  of  replevin  are  considerable,  and  with 

'  Buck  V.  Colbath,  3  Wall.  (U.  S.)  334. 

'  Kinney  v.  Crocker,  18  Wis.  79 ;  Brueu  v.  Ogden,  (11  N.  J,  L.)  6  Halst. 
371. 


COURT   MUST   HAVE   JUKISDICTION   TO    ISSUE   WRIT.  161 

the  responsibility  imposed,  the  law  gives  a  corresponding 
authority  to  be  exercised  by  the  officer  in  his  own  protection. 
An  officer  has  immunity  for  acts  done  in  the  proper  discharge 
of  his  duty  in  executing  legal  process,  but  when  he  attempts 
to  execute  illegal  process,  or  legal  process  in  an  illegal  manner, 
it  affords  him  no  protection.' 

§  284.  He  must  see  that  the  writ  is  in  form.  An  officer 
who  assumes  to  act  under  color  of  authority  of  law,  must  take 
the  responsibility  of  determining  whether  tlie  law  has  given 
him  the  authority  which  he  assumes  to  exercise.  Thus,  an 
officer  is  not  justified  in  executing  an  order  or  process  which 
is  void  on  its  face,  or  which  the  court  has  no  jurisdiction  to 
issue.2  Neither  has  he  a  right  to  execute  process,  however 
legal  or  formal  it  be,  in  any  other  than  a  legal  manner;  as 
when  the  statute  forbids  service  on  Sunday,  he  would  have  no 
lawful  authority  to  execute  process  on  that  day.^  It  therefore 
becomes  the  duty  of  the  officer  in  receiving  a  wi-it  of  replevin 
to  see  that  it  is  substantially  in  legal  form.  If  for  any  defect 
on  its  face  it  is  void  or  inoperative,  he  will  be  liable  as 
a  trespasser  or  may  be  liable  for  the  value  of  the  goods,  if  he 
proceed  to  execute  it.* 

§  285.  And  that  it  issues  from  a  court  of  competent  juris- 
diction. The  officer  must  also  decide  whether  the  court 
had  jurisdiction  to  issue  the  writ.  This  by  no  means  requires 
him  to  inquire  whether  the  court  acted  properly  in  issuing  the 
writ,  for  that  question  is  entirely  beyond  his  right  to  deter- 
mine. Keitlier  is  he  called  upon  to  determine  the  rights  of 
the  parties,  or  whether  the  writ  was  properly  issued  or  not. 
If  the  process  be  formal  and  sufficient  on  its  face,  and  if  the 
court  from  whence  it  issued  had  jurisdiction  to  issue  such  a 

'  Driscoll  V.  Place,  44  Vt.  258.  If  an  officer  levy  an  execution  after  the 
return  day  has  expired,  he  is  a  trespasser.  Vail  v.  Lewis,  4  Johns.  450. 
Consult  Dynes  v.  Hoover,  20  How.  65 ;  "Wise  v.  Withers,  3  Cranch.  TJ.  S.  Sup. 
Ct.  331;  Brown  v.  Compton,  8  Term.  K.  424,;  Davison  v.  Gill,  1  East.  64. 

«  Leadbetter  v.  Kendall,  Hempst.  (U.  S.  C.  C.)  302;  Brown  v.  Compton,  8 
Term.  R.  424  and  231 ;  Dynes  v.  Hoover,  20  How.  (U.  S.)  65 ;  Wise  v.  With- 
ers. 3  Cranch,  (U.  S.)  331. 

8  Peirce  v.  Hill.  9  Porter,  (Ala.)  151 :  Allen  v.  Crary,  10  Wend.  349. 

*  Dame  v.  Fales,  3  N.  il.  70. 
li 


1G2  GOODS  IN  TEE  CUSTODY  OF  THE  LAW. 

writ,  it  will  be  a  complete  protection  to  him,  acting  in  obedi- 
ence to  its  commands,  so  long  as  lie  acts  within  the  scope  of 
his  legal  duties;and  for  the  purpose  of  obeying  its  commands, 
he  is  to  employ  sufficient  force  to  execute  its  maTidates.i  But 
if  he  have  knowledge  aliunde  of  the  want  of  jurisdiction  and 
persists  in  executing  the  writ  notwithstanding,  he  will  be 
liable. 3  Or  where,  from  the  circumstances  of  the  case  appear- 
ing on  the  face  of  the  paper,  the  officer  can  see  that  there  may 
be  cause  to  suspect  that  process  apparently  formal  has  been 
improperly  issued,  he  ought  to  examine  into  the  matter  to  see 
that  it  is  regular  before  serving  it.^  As  where  under  the  stat- 
ute an  execution  must  issue  within  one  year  after  judgment  is 
rendered,  without  which  a  subsequent  execution  is  void.*  A 
judgment  was  rendered  in  18G3  and  no  execution  issued 
thereon  until  1869,  when  execution  was  issued  and  returned 
nulla  hona^  and  a  transcript  afterwards  taken  to  the  circuit 
court  and  another  execution  issued  thereon.  The  latter  execu- 
tion was  held  no  protection  to  the  officer.  ^  The  officer  should 
examine  the  description  of  the  property  in  the  writ,  and  if  it 
be  so  uncertain  that  he  cannot  distinguish  the  property,  or  if 
the  property  shown  him  be  essentially  different  from  the  goods 
described,  he  may  refuse  to  serve  the  process.^  It  does  not 
follow  that  the  writ  which  may  be  sufficient  to  protect  the 
officer,  will  also  afford  the  same  justiiication  to  the  party.'' 

§  286.  The  writ  does  not  authorize  a  seizure  of  goods 
from  the  person  of  the  defendant.  When  the  defendant  is 
wearing  a  watch,  or  other  article,  either  of  ornament  of  apparel, 
the  writ  would  confer  no  authority  on  the  officer  to  seize  it 

1  Fulton  V.  Heaton,  1  Barb.  (N.  Y.)  552;  Ela  v.  Shepard,  32  N.  H.  277; 
Colt  n.  Eves,  12  Conn.  251;  Young  v.  Wise,  7  Wis.  128;  Sprague  v.  Birch- 
ard,  1  Wis.  458;  McLean  v.  Cook,  23  Wis.  365;  Bogert  v.  Phelps,  14  Wis. 
88;  LandtiJ.  Hilts,  19  Barb.  283;  Earl  v.  Camp,  16  Wend.  563;  Dorainick 
V.  Backer,  8  Barb.  17;  Bagnall  ».  Ableman,  4  Wis.  163. 

2  Sprague  v.  Birchard.  1  Wis.  457;  Grace  v.  Mitchell,  31  Wis.  S'O;  Colt 
tj.  Eves,  12  Conn.  243. 

2  Bacon  v.  Cropscy,  3  Seld.  195. 

*  Morgan  v.  Evans,  72  111.  586,  and  cases  cited. 
»  Hay  V.  Hayes,  56  HI.  343. 

•  De  Witt  V.  Morris,  13  Wend.  495. 

'  Brown  v.  Bissett,  1  Zab.  21,  (N.  J.)  46. 


RIGHT    OF    OFFICER   TO    TAKE   GOODS.  163 

from  his  person,  even  when  worn  for  the  purpose  of  keeping 
it  from  such  seizure,  the  person  of  the  defendant  being  free 
from  molestation  upon  process  of  this  nature. ^ 

§  287.  The  right  of  an  offioer  to  break  and  enter  a  dwell- 
ing to  take  goods.  The  question  as  to  whether  an  officer  has 
a  right  to  break  and  enter  the  dwelling  of  the  defendant  to 
serve  a  writ  of  replevin  seems  to  present  itself  here.  Under 
the  ancient  common  law  the  right  and  duty  of  the  officer  was 
unquestioned,  A  man's  house  was  his  castle,  and  would  pro- 
tect bis  person  or  his  goods  from  seizure  on  civil  process,  but 
the  wrongful  taking  of  the  goods  of  another  was  looked  upon 
as  little  better  than  robber}', ^  and  the  safeguards  thrown 
around  a  dwelling  house  would  not  privilege  the  owner  to  take 
or  keep  the  goods  of  another.  The  Statute  Westminster  1, 
Chapter  17,  expressly  directed  the  sheriff  to  break  and  enter  a 
dwelling  house  or  stronghold  to  make  replevin  of  goods  therein 
wrongful!}'  detained.  Authorities  in  modern  times  upon  this 
question  are  meager,  but  it  has  been  held  that  the  sheriff  liad 
a  riijht  to  enter  the  defendant's  house  to  search  for  g-oods  de- 
scribed  in  a  writ  of  replevin,  and  tiiat  the  legality  of  his  entry 
did  not  depend  on  the  fact  of  his  finding  the  property  therein. 
The  court  said,  "  It  would  be  strange  if  the  defendant,  by 
secreting  the  goods,  and  thus  adding  to  the  wrongful  taking, 
could  have  an  action  against  the  sheriff  in  coming  to  searcli 
for  what  he  has  good  reason  to  suppose  could  be  found  there. ''^ 
A  man's  house  is  not  a  castle,  nor  does  it  carry  any  privilege 
but  for  himself.  It  will  not  protect  a  stranger  who  may  flv 
there,  nor  will  it  protect  the  goods  of  another  brought  there 
to  avoid  a  lawful  execution.-* 

§  288.     Parties  bound  to  know  the  sheriff.      If  an   officer 

'  Maxhara  v.  D;iy,  16  Gray,  213.  Nnr  will  an  inn  keeper  be  permitted 
to  issert  a  lien  on  the  garments  whicli  his  guest  is  wearing  on  liis  person. 
Sunbolp  V.  Alford,  3  Mees  &  W.  249. 

2  Gilbert  on  Rep.  70;  Britten,  title  Replevin. 

3  Kneas  v.  Filler.  2  S.  &  R.  (Pa.)  2G5. 

*  Semaney's  Case,  5  Coke,  91.  The  sheriff  may  break  and  enter  a  barn 
or  outhouse  to  serve  an  execution.  See  M'Gee  v.  Given,  4  Blackf.  18,  note ; 
Hiiggerty  v.  Wilber,  16  Johns.  287.  See  cases  cited  in  State  v.  Smith,  1  N. 
H.  346. 


1G4:  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

serves  the  writ  in  person  all  parties  are  bound  to  know  and 
recognize  him.  So,  doubtless,  of  a  regularly  appointed  deputy ; 
but  if  the  sheriff  appoint  a  special  deputy,  though  his  power  and 
authority  is  the  same  as  the  sheriff  to  serve  that  process,  yet 
he  would  be  obliged  to  show  his  authority,  if  it  were  ques- 
tioned, as  the  defendant  is  under  no  obligation  to  recognize 
liim  without  it.^ 

§  289.  Duty  of  the  sheriflF  to  take  bond;  his  liability  in  re- 
spect to  the  bondsmen.  The  law  required  the  sheriff  to  take 
bond  from  the  j)laintiff,  with  two  securities,  conditioned  that 
he  would  duly  prosecute  the  suit,  or  make  return,  etc.,  and 
held  the  sheriff  responsible  for  the  solvency  of  these  securi- 
ties; not  only  that  they  were  solvent  when  accepted  by  the 
sheriff,  but  that  they  should  continue  so  down  to  the  time 
when  they  should  be  legally  called  upon  to  make  good  the  con- 
ditions of  their  bond.^  The  harshness  of  this  rule  has  been 
greatly  modified  of  late.  And  so  far  has  the  change  in  this 
direction  been  carried  in  many  of  the  States  that  the  statute 
provides  a  method  by  which  the  defendant  may  except  to  the 
bondsmen  of  the  otlier  party  within  a  limited  time,  and  in 
case  of  failure  to  do  so  within  that  time  he  is  precluded  from 
doing  so  afterwards. 3  And  the  sheriff  is  not  liable  unless  a 
formal  exception  is  sustained.'*  But  if  the  securities  fail  to 
justify  when  excepted  to,  the  sheriff  is  liable. ^ 

§  290.  Extent  of  the  sheriff's  liability.  Tlie  question  has 
arisen  as  to  the  extent  of  the  sheriff's  liability;  whether  it  is 
limited  by  the  amount  of  the  bond,  or  whether,  in  case  the 
real  damage  sustained  exceeds  that  amount,  the  sheriff  should 
be  held  for  the  real  damages.  The  penalty  in  the  bond,«  where 
the  suit  is  for  taking  insufficient  security,  is  usually  the  limit 

'  Burton  v.  Wilkinson,  18  Vt.  186.  See,  also,  Alexander  v.  Burnham,  18 
Wis.  200;  Stat?,  etc.,  ex  rel.  v.  Williams,  5  Wis.  308,  and  note  to  new  ed.  p. 
631. 

'  Grant  v.  Booth,  21  How.  Pr.  Rep.  354. 

3  Clinton  v.  King,  3  How.  Pr.  Rep.  55;  Weed  v.  Hinton,  7  Hill,  157; 
Burns  v.  Robbins,  1  Code  R.  62. 

*  Wilson  V.  Williams,  18  Wend.  581. 

5  Hoef  heiuer  v.  Campbell,  7  Lans.  (N.  Y.)  157. 

•  Evans  v.  Brander,  2  H.  Bla.  557 ;  Jeffrey  v.  Bastard,  4  Ad.  &  E.  823. 


DUTY   OF    TUE    SDEKIFF.  165 

of  damages.  But  where  the  sheriff  fails  to  take  any  bond,  or 
takes  bond  in  a  sum  less  than  double  the  value  of  the  property, 
the  injured  party  may  unquestionably  recover  the  real  damages 
he  has  sustained.  ^  By  statutes  in  some  of  the  States,  the 
clerk,  not  the  sheriff,  takes  the  security,  which  may  be  excepted 
to  by  the  opposing  party,  if  he  think  it  insufficient.  The  gen- 
eral  rule,  however,  requires  the  sheriff  to  take  bond  from  the 
plaintiff  before  serving  the  writ,  and  the  writ  cannot  be  exe- 
cuted by  delivery  of  the  property  unless  the  bond  provided  by 
statute  be  given. 2  And  if  he  omits  to  require  such  bond  as 
the  statute  provides,  he  is  liable  to  the  defendant  for  failure  to 
take  bond. 

§  29 1.  Return  by  sheriff  of  goods  wrongfully  seized  by  him. 
"When  the  sheriff  wrongfully  took  property  from  a  person  other 
than  the  defendant  named  in  the  attachment,  and  afterwards, 
to  a  suit  for  such  wrongful  taking,  he  answered  that  he  had 
returned  the  property  to  the  parties  from  whom  he  took  it; 
hehi^  immaterial.  The  answer  did  not  allege  a  return  to  the 
plaintiff,  or  any  one  hy  him  authorized  to  receive  it.  The 
party  who  had  it  may  himself  have  been  a  wrongdoer;  or,  sup- 
pose the  property  was  seized  wliile  in  the  hands  of  a  drayman, 
being  moved  from  OTie  point  to  another;  a  return  to  the  drav- 
man  would  not  constitute  a  defense  to  the  claim  of  theowner.^ 
The  plaintiff  sues  for  a  taking  or  detention  of  the  goods  from 
him,  and  it  is  no  answer  to  his  claim  to  say  they  have  been 
voluntarily  delivered  to  another. 

§  292.  Duty  of  the  sheriff  on  receiving  a  writ  of  replevin. 
It  is  the  duty  of  the  sheriff,  on  receiving  a  writ  of  replevin, 
to  execute  it  in  the  manner  required  by  the  statute,  which 
should  be  his  guide.  He  must  serve  it  on  the  defendant  in 
person,  if  he  can  be  found;  but  a  seizure  and  delivery  of  the 
property  must  be  made  where  that  can  be  done,  whether  per- 
sonal service  is  had  on  the  defendant  or  not.^     He  must  make 


'  People,  etc.  v.  Core,  85  111.  248. 

2  Smith  n.  McFall,  18  Wend.  521;  Wilson  b.  Williams,  18  Wend.  581 ; 
Milliken  «.  Selye,  6  Hill,  623. 

3  Caldwell  t.  Arnold,  8  Minn.  2G5. 

*  Abrams  v.  Jones  et  al.,  4  Wis.  806. 


166  GOODS    IN   THE    CUSTODY   OF    THE   LAW. 

all  reasonable  efforts  to  find  the  goods.  If  lie  cannot  do  so 
without,  he  must  search  and  inquire.  If,  influenced  by  vague 
rumors,  he  returns  the  writ  without  obtaining  the  goods,  when 
they  could  have  been  found  by  search  and  inquiry,  he  will  be 
liable.^  The  writ  will  sometimes  be  of  no  avail  to  the  parties 
unless  served  promptly;  and  while  the  sheriff  is  not  bound  to 
lay  aside  all  other  business  to  attend  to  it,  he  is  bound  to  use 
all  reasonable  endeavors  to  execute  the  process,  so  that  it  may 
take  effect  as  the  party  designed,  ^  In  New  York,  when  the 
sheriff  has  seized  property  under  a  writ  of  replevin,  he  is  not 
bound  to  deliver  it  to  the  plaintiff  before  the  securities  on  the 
bond  have  been  accepted,  or  justified,  and  during  the  time  the 
goods  remain  in  his  possession,  he  is  not  an  insurer  of  them, 
but  is  bound  to  use  such  care  of  the  goods  as  a  careful  man 
would  exercise  with  his  own  property;  whether  he  has  done 
so  or  not,  is  a  question  for  the  jury.^  It  has  been  held  that 
if  the  sheriff  leaves  goods  in  the  hands  of  the  debtor,  taking 
security  for  their  delivery,  or  payment  of  the  debt,  he  becomes 
liable  if  they  are  destroyed  by  fire  or  otherwise,  except  by  act 
of  God  or  the  public  enemy. ^ 

§  293.  Duty  of  the  sheriff  with  respect  to  severing  articles 
claimed  to  be  real  estate.  One  of  the  most  difiicult  questions 
touching  the  power  and  duty  of  the  sheriff,  is,  when  he  is 
called  upon  to  serve  the  writ  of  replevin  by  taking  and  deliv- 
ering property  apparently  real  estate,  and  which  requires  to 
be  severed  from  the  realty,  to  enable  the  ofiicer  to  obey  the 
command  of  the  process.  The  writ  is  effectual  for  the  delivery 
of  personal  property  only,  and  furnishes  no  justification  to  an 
ofiicer  who,  in  attempting  to  serve  it,  severs  and  delivers  part 
of  the  realty.  5     So  when  suit  was   for  rails,  when  defendant 

'  Bosley  v.  Farquar,  2  Blackf.  66. 

s  Hinmau  v.  Borden,  10  Wend.  367;  Whitney  v.  Butterfiekl,  13  Cal.  339; 
Lindsay  Exrs.  v.  Armfield,  3  Hawks.  (N.  C.)  548;  Kennedy  v.  Brent,  6 
Cranch,  187;  Paynes.  Drews,  4  East,  523;  Van  Winkle  v.  Udall,  1  Hill.  559. 

»  Moore  v.  Westervclt,  21  N.  Y.  103;  Moore  v.  Westervelt,  1  Bos.  (N.  Y.) 
358.     See  Rives  v.  Wilborne,  6  Ala.  45. 

*  Browning  v.  Hanford,  5  Denio,  586. 

Mioberts  v.  The  Dauphin  Bank,  19  Pa.  St.  75;  Ricketts  v.  Dorrel,  55 
Ind.  470. 


LIABILITY    OF   THE    OFFICER   A    PERGONAL   ONE.  167 

had  built  part  of  them  into  a  fence  before  the  writ  was  served, 
it  was  said  those  built  into  the  fence  were  real  estate,  and 
could  not  be  taken.  ^  This  rule  undoubtedly  governs  in  all 
cases.  The  sheriff  is  liable  as  a  trespasser  if  he  severs  any 
part  of  the  realty  and  delivers  it,  even  though  it  is  the  identi- 
cal property  described  in  the  writ.  But  the  sheriff  is  also 
liable,  if  he  refuse  to  serve  the  writ  by  delivering  personal 
property  therein  described  under  pretense  that  it  is  real  estate, 
unless  such  is  really  the  case,  and  he  must  assume  the  respon- 
sibility, and  act  or  refuse  to  act,  as  he  shall  judge  proper. 
But  in  cases  where  there  can  be,  and  probably  is,  an  honest 
difference  of  opinion,  and  the  property  is  described  as  personal 
property  in  the  affidavit  and  the  writ,  the  sheriff  ought  to 
take  proper  indemnity  from  the  parties  and  execute  the  writ, 
giving  the  defendant  due  opportunity  to  restrain  if  he  wishes 
to  do  so.  2 

§  294.  The  liability  of  the  officer  a  personal  one.  The 
officer  should  bear  in  mind  that  any  act  done  under  color  of 
his  office  affecting  the  rights  of  parties  not  named  in  the  writ, 
may  render  him  liable  as  a  trespasser.^  So  any  failure  or 
neglect  on  his  part  to  serve  the  writ  in  a  proper  and  legal 
manner,  within  the  proper  time,  may  subject  him  to  an  action 
at  the  hands  of  the  injured  party,^  and  an  illegal  service  may 
render  him  liable  to  the  defendant.  His  liability  is  a  personal 
one,  and  his  official  position  does  not  change  it.  "Where  he  is 
guilty  of  an  act  of  trespass,  judgment  against  him  must  be 
satisfied  out  of  his  individual  property,  and  his  resignation, 
removal,  or  the  expiration  of  his  term,  will  not  change  his 
liability. 5  Therefore,  when  a  reasonable  doubt  exists,  he  is 
not  compelled  to  proceed  without  indemnity  from  the  party  in 
whose  behalf  he  is  acting.®  When  the  law  requires  the  officer 
to  act,  as  to  acts  done  in  the  performance  of  his  duty,  it  will 

'  Bowen  v.  Tallman,  5  S.  «&  W.  (Pa.)  560. 

•  Elliott  V.  Black,  45  Mo.  374;  Hamilton  v.  Stewart,  59  111.  331. 

»  State  V.  Jennings,  14  Ohio  St.  78;  Moultun  v.  Jose,  25  Me.  70;  Caldwell 
c.  Arnold,  8  Minn.  3G5. 

*  Brown  v.  Jarvis,  1  Slees.  &  W.  704. 
'  Stillman  v.  Squires,  1  Denio,  328. 

«  State  V.  Jennings,  14  Ohio  St.  78;  Colt  v.  Eves,  12  Conn.  243. 


168  GOODS   IN   THE   CUSTODY   OF   THE    LAW. 

favor  a  presumption  that  be  has  performed  it,  and  the  burden 
of  showing  to  the  contrary  is  on  the  other  party. ^  The  act 
of  the  deputy  in  seizing  property  is  the  act  of  the  sheriff,  and 
the  possession  of  the  deputy  is  the  possession  of  the  slier  iff.  ^ 
So  the  possession  of  a  bailiff  or  custodian  is  the  possession 
of  the  sheriff,  and  while  the  custodian  may  have  a  sufficient 
possession  to  be  made  a  defendant  in  replevin,  it  by  no  means 
follows  that  the  officer  is  not  also  liable.  ^  When  a  party 
obtains  a  valid  writ  of  replevin  against  a  sheriff,  the  officer 
should  obey  the  writ  by  surrendering  the  goods  in  obedience 
to  the  process,  but  his  refusal  to  do  so  does  not  make  him  a 
trespasser  in  the  taking. ^ 

§  295.  The  sheriff  liable  for  the  acts  of  his  deputies.  The 
sheriff  is  liable  for  all  the  acts  of  his  deputies  in  their  official 
capacity.  In  the  view  of  the  law,  all  the  deputies  are  but  the 
servants  of  the  sheriff.  ^ 

§  296.  Disputes  between  deputies  of  the  same  sheriff  set- 
tled by  the  sheriff.  Disputes  between  deputies  of  the  same 
sheriff  as  to  the  possession  of  property  which  both  have  levied 
on,  should  be  settled  by  the  sheriff;  neither  deputy  has  any 
technical  property  in  the  thing.  The  sheriff  has  to  answer  one 
or  both  the  attaching  creditors,  and  must  settle  the  dispute. ^ 

1  Shorey  v.  Hussey,  33  Me.  580. 

2  Stillman  v.  Squires,  1  Denio,  328. 

3  Ralston  v.  Black,  15  Iowa,  48. 

4  Walker  v.  Hampton,  8  Ala.  413;  Cole  v.  Conolly,  16  Ala.  371 ;  Six  Car- 
penter's  Case,  8  Co.  Rep. 

6  Grinuell  v.  Phillips,  1  Mass.  530;  Miller  v.  Baker,  1  Met.  37;  Tuttle  v. 
Cook,  15  Wend.  274;  The  People  v.  Schuyler,  4  Comst.  173;  Poinsett  v. 
Taylor,  6  Cal.  78;  King  v.  Chase,  15  N.  H.  9;  King  v.  Orser,  4  Duer.  431; 
People  V.  Brown,  6  Cow.  41 ;  Terwillinger  v.  Wheeler,  35  Barb.  630.  But 
not  for  the  act  of  his  deputy  in  levying  a  distress  warrant  illegally;  in 
such  case  he  acts  as  bailifl"of  landlord.  Moulton  v.  Norton,  5  Barb.  386. 
See  Vanderbilt  v.  Richmond  Co.,  2  Comst.  479;  Cotton  ■».  Marsh,  3  Wis. 
240.  In  Vermont,  the  deputy  seems  to  have  an  action  in  his  own  name  for 
any  interference  with  property  seized  by  him.     Stanton  v.  Hodges,  6  Vt.  64. 

«  Perley  v.  Foster,  9  Mass.  112:  Ackeworth  v.  Kemp,  Douglas,  40;  Wood- 
gate  V.  KnatchbuU,  3  D.  &  East.  150.  Contra,  see  Gordon  v.  Jenney,  16 
Mass.  4G9,  where  it  is  held  that  deputies  act  independently  of  each  other, 
and  that  one  of  them  can  maintain  replevin  against  another,  of  the  same 
sheriff. 


SERVICE   OF   A   ■WRIT   OF   EEPLEVIN.  169 

§  297.  The  oflScer's  return.  The  return  of  the  officer 
should  be  made  without  delay.i  It  must  distinctly  and 
clearly  set  out  his  acts,  under  the  authority  of  the  writ.  If  a 
part  of  the  property  only  has  been  taken,  the  return  must 
show  what  part,  so  that  from  the  return  alone,  the  court  can 
see  what  has  been  done.  Otherwise,  upon  an  order  for  a 
Teturn  of  the  property  replevied,  or  on  a  question  arising  as 
to  what  was  actually  delivered,  a  dispute  might  arise  and  the 
court  have  no  certain  means  of  determining. ^  As  to  matters 
material  to  be  returned,  it  is  so  far  conclusive  that  it  cannot  be 
contradicted  or  avoided  in  the  suit,  for  the  purpose  of  defeat- 
ing any  rights  which  have  been  acquired  by  the  parties  under 
it;^  but  the  return  oV  collateral  facts  may  be  traversed. ^ 

§  298.  As  to  the  service  of  a  writ  of  replevin.  Where,  as  is 
the  case  in  replevin,  the  writ  points  out  the  precise  thing  to 
be  done  or  the  specific  property  to  be  siezed,  the  officer  has  no 
discretion.  lie  must  take  the  goods  if  found  in  the  defend- 
ant's possession,  and  where  he  does  so,  the  court  will  protect 
him  in  obeying  its  mandate, ^  This  rule  is  illustrated  in 
AVisconsin,  in  a  case  where  an  attachment  for  a  laborer's  lien 
was  sued  out.  The  writ  commanded  the  officer  to  attach  the 
identical  property  and  replevin  was  not  permitted,  the  lien 
being  against  that  particular  property,^  and  the  writ  was 
regarded  as  a  protection  to  the  officer  in  retaining  possession 
of  the  property.''  When  an  action  of  trespass  was  brought 
against  an  officer  for  taking  away  a  horse,  under  a  writ  of 
replevin   which  commanded  him  to  cause   the  beast  of  the 

'  Hutchinson  ■p.  McClellan,  2  Wis.  17. 

2  Mattingly  «.  Crowley,  43  111.  300;  Pool  v.  Loomis,  5  Ark.  110;  Miller  n. 
Moses,  56  Me.  134;  Nashville  Ins.  Co.  v.  Alexander,  10  Humph.  (Tenn.)  378; 

8  Knowles  v.  Lord,  4  Whart.  (Pa.)  500 ;  Cornell  v.  Cook,  7  Cow.  (N.  Y.j  311, ; 
Messer  «.  Baily,  11  Fost.  (N.  H.)  9;  Pardee  v.  Robertson,  6  Hill,  (N.  Y.)  550. 

<  Brown  «.  Davis,  9  N.  H.  76;  Messer  v.  Baily,  11  Fost.  (N.  H.)  9;  Augier 
V.  Ash,  6  Fost.  (N.  H.)  99;  Lewis  ®.  Blair,  1  K  H.  69:  Evans  v.  Parker,  20 
Wend.  622;  Browning  d.  Hanford,  5  Denio,  586.  In  a  suit  agdnst  an  offl. 
cer  for  taking  property  by  replevin,  the  return  of  the  officer  cannot  be  read 
against  him  without  reading  the  writ.    Weinberg  'g.  Couover,  4  Wis.  803. 

'  Buck  V.  Colbath,  3  Wall.  (Sup.  Ct.)  334. 

*  Union  Lumber  Co.  v.  Trouson,  30  Wis.  129. 

»  Griffith  t).  Smith,  23  Wis.  647 ;  Battis  v.  Hamlin,  23  Wis.  609. 


170  GOODS  IN  THE  CUSTODY  OF  THE  LAW. 

plaintiff,  "impounded  or  destrained,"  to  be  replevied,  etc. 
The  horse  replevied  was  not  distrained  or  impounded  and  the 
officer  knew  it,  and  it  was  contended  that  the  officer  ought 
not  to  have  served  the  writ,  and  that  in  so  doing  he  became  a 
trespasser;  the  court,  however,  held  that  the  defendant  was  a 
legal  officer  and  that  it  was  his  duty,  regardless  of  any  sup- 
posed knowledge  of  his  own  that  there  existed  no  cause  of 
action,  to  serve  the  writ  committed  to  him;  that  the  writ, 
valid  on  its  face,  was  a  protection,  and  it  was  no  part  of  his 
duty  to  determine  that  the  replevin  M^as  improperly  issued; 
his  duty  was  to  obey  the  writ.^  As  has  been  shown,  the 
statute  in  many  of  the  States  gives  the  defendant  the  right  to 
interpose  a  claim  of  property,  to  give  bond  and  retain  the 
property  in  his  possession  until  the  rights  of  the  contestants 
are  determined.  When  the  defendant  claims  the  property, 
the  sheriff  ought,  in  the  absence  of  any  statute  fixing  time, 
to  allow  him  a  reasonable  time  within  which  to  give  bond  to 
retain  the  possession,  and  in  an  action  of  trespass  against  the 
sheriff,  the  writ  will  be  no  protection  unless  such  time  is 
alio  wed.  2 

§  209.  Eifect  of  the  replevin  of  property  seized  on  execu- 
tion. The  lev}^  of  an  execution  will  operate  as  a  satisfaction  of 
it,  suh  modo.  Even  though  the  property  should  be  replevied 
the  bond  is  regarded  as  an  indemnity,  and  the  sheriff"  cannot 
make  any  other  or  further  levy  upon  that  execution.  If  the 
result  of  the  suit,  however,  is  against  the  officer,  the  levy  is 
not  payment  of  the  debt.^ 

§  300.  Special  property  created  by  a  levy  on  goods.  An 
officer  who  has  seized  property  on  a  writ  of  execution  or  attach- 
ment has  such  a  special  property  therein  as  will  sustain  re- 
plevin or  trover.*  This  is  founded  on  the  officer's  responsi- 
bility for  the  safe  keeping  of  the  goods  in  his  custody  as  well 
as  his  duty  and  responsibility  under  his  ])i*ocess.5     And  a  sale 

*  Watson  V.  Watson,  9  Conn.  140. 

«  Hocker  t).  Strieker,  1  Dall,  225,  245. 
8  Kunn  V.  Hough,  5  Heisk,  713. 

*  Lockwood  V.  Bull,  1  Cow.  322 ;  Polite  v.  Jefferson,  5  Har.  (Del.)  388 ;  Nor- 
ton V.  People,  8  Cow.  137;  Dezell  v.  OJell,  3  Hill,  215. 

-  ucAax'j^  c.  Blake,  3  Foster,  (N.  H.)  56;  Broadwell  i\  Paradicc,  81  111.  474. 


JUSTIFICATION    BY    OFFICER.  171 

on  sncli  process  conveys  all  the  title  which  the  defendant  in 
the  process  had.i  When  the  officer  has  delivered  the  goods 
to  a  receiptor  for  safe  keeping  the  officer  is  regarded  as  still  in 
possession,  and  he  may  maintain  trover  for  them. 2  When  a 
marshal  of  an  incorporated  town  seized  goods  by  virtue  of 
a  legal  process,  and  they  were  unlawfully  taken  from  him,  he 
was  allowed  to  sustain  replevin  against  the  wrong-doer. ^ 

§  301.  Justification  by  an  officer.  When  an  officer  justifies 
his  taking  under  a  writ  of  attachment  or  an  execution,  the 
plea  should  state  the  nature  of  the  writ,  and  the  court  or 
authority  under  which  the  same  was  issued.  It  should  also 
state  what  the  commands  of  the  writ  were,  so  tliat  the  court 
may  see  what  he  has  done,  and  whether  he  has  obeyed  the  writ 
or  not.  The  plea  should  also  show,  if  such  be  the  fact,  tliat 
the  plaintiff  in  replevin  was  tlie  defendant  in  the  process,  and 
in  all  cases  that  the  goods  belonged  to  the  defendant  in  the 
process  and  were  taken  from  him,  or  on  the  process  against 
him,  and  are  in  the  custody  of  the  law.*  But  in  some  States 
the  plea,  or  answer  of  general  denial,  is  held  broad  enough  to 
permit  an  officer  who  is  defendant  to  show  that  he  has  taken 
the  property  upon  process,  and  that  the  goods  belong  to  the 
plaintiff,  or  to  the  plaintiff  and  another  jointly,  and  were 
seized  upon  process  against  him.^ 

§  302.  The  defense  by  sheriff  when  goods  seized  are  re- 
plevied from  him.     The  sheriff,  in  levying  an  execution  or 

'  O'Connor  v.  Union  Line,  31  111.  230;  Hazzard  v.  Benton,  4  Har.  (Del.)  62. 

«  Norton  v.  The  People,  8  Cow.  137;  Dezell  v.  Odell,  3  Hill,  215. 

s  Fitch  V.  Dunn,  3  Blackf.  142. 

4  Whittington  v.  Dearing,  3  J.  J.  Marsh,  (Ky.)  684;  McCarty  ij.  Gage,  3 
Wis.  404;  Richardson  v.  Smith,  29  Cal.  5  29;  Parsley  t).  Huston,  3  Blackf. 
348;  Dillon  v.  Wright,  4  J.  J.  Marsh,  (Ky.)  254.  See,  also,  Stephens  v.  Fra- 
zier,  2  B.  Mon.  (Ky.)  250 ;  Gentry  v.  Bargis,  6  Blackf.  262 ;  Dillon  v.  W^right, 
4  J.  J.  Marsh,  (Ky.)  254;  Bridges  v.  Layman,  31  Ind.  384;  Truitt  v.  Rovill, 
4  Har.  (Del.)  71.  The  process  need  not  he  copied,  hut  must  he  set  up. 
Parsley  v.  Huston,  3  Blackf  348;  Wheeler  v.  McCorristen,  24  111.  42;  Van 
Namee  v.  Bradley,  69  111.  301 ;  ISIt.  Carbon  Coal  Co.,  etc..  v.  Andrews,  53  111. 
185.    For  a  form  of  plea  in  such  case,  see  Lammers  v.  Meyer,  59  111.  216. 

^  Branch  v.  Wiseman,  51  Ind.  1.  When  the  sheriff  pleaded  that  the  prop, 
erty  belonged  to  A.  and  B.  and  that  he  had  seized  it  under  an  attachment 
as  sheriff;  held,  that  it  might  be  regarded  as  a  pica  of  property  in  a  third 
person.    Levi  v.  Darling,  28  Ind.  498;  Martin  v.  Watson,  8  W^is.  315. 


172  GOODS  IN  XnE  CUSTODY  OF  THE  LAW. 

attachment,  assumes  the  responsibility  that  the  goods  levied 
on  belong  to  the  defendant  named  in  the  process,  and  if  the 
goods  are  replevied  from  him  his  plea  must  aver  that  the  goods 
were  the  property  of  the  defendant  in  the  process  under  which 
they  were  seized.'  When  the  officer  wishes  to  contest  the 
title  of  the  plaintiff  as  fraudulent  as  to  creditors'  whose  pro- 
cess he  holds,  the  fraud  should  be  specially  pleaded;  otherwise 
he  may  not  be  permitted  to  show  it.3  So  when  the  claim  of 
the  plaintiff  is  wholly,  or  in  part,  void  for  usury  —  when  the 
statutes  allow  the  defense  to  be  made  by  parties  or  privies  — 
the  usury  may  be  pleaded. ^  Where  property  seized  on  execu- 
tion is  replevied  from  the  officer,  and  he  wishes  an  order  for 
return,  he  must  not  only  plead  the  execution  and  a  judgment 
but  a  valid  execution  and  judgment  must  also  be  given  in  evi- 
dence to  support  the  plea.'*  And  the  plea  and  the  evidence 
should  show  that  the  writ  was  in  full  force  and  not  satisfied, 
and  that  the  property  was  taken  in  obedience  to  the  writ.^ 

§  303.  The  same.  When  the  vendee  of  goods  replevied 
them  from  a  sheriff  who  seized  them  on  mesne  process  against 
the  vendor  before  the  sheriff  could  contest  the  sale  on  the 
ground  that  it  was  fraudulent,  he  was  compelled  to  make  out 
a  prima  facie  case,  at  least,  of  indebtedness.  His  right 
depended  on  the  existence  of  a  debt  due  to  the  ]  laintiff  in  the 
process.^  The  officer,  in  such  case,  is  representing  the  cred- 
itors, and  they  have  no  right  to  contest  the  sale  unless  they 
show  a  debt,  or  some  obligation  which  the  vendee  is  under  to 
them.  A  sale  by  a  sheriff  can  transfer  no  better  title  than  the 
defendant  had  in  the  process  upon  which  the  sale  was  made.'" 

'  Smith  «.  Winston.  10  Mo.  301 ;  Gentry  v.  Bargis,  6  Blackf.  2G3;  Adams 
V.  Hubbard,  30  Mich.  104;  Buck  v.  Colbath.  3  Wall.  3-43,  334. 

■2  Frisbee  v.  Langwoithy,  11  Wis.  375. 

3  Dix  V.  Van  Wyck,  2  Hill.  533. 

^  Glascock  V.  Nave,  15  Harrison,  (Ind.)  458;  Beach  v.  Botsford,  1  Doug. 
(Mich.)  20G;  Clay  v.  Caperton,  1  T.  B.  Mon.  (Ky.)  10;  Saudeford  v.  Hess,  1 
Head,  rTenn.)  679. 

^  Dayton  v.  Fry,  29  111.  526. 

«  Sanford  Manf.  Co.  v.  Wiggin,  14  N.  H.  441 ;  Damon  v.  Bryant,  2  Pick.  413. 

^  Goodrich  v.  Fritz,  4  Ark.  535;  Shearick  v.  Huber,  6  Binus.  (Pa.)  4;  Me- 
Donald  1>.  Prescolt,  2  Nev.  109;  O'Connor  v.  Union  Line,  etc.,  31  111.  230; 
Hazzard  v.  Benton,  4  Har.  (Del.)  63. 


TAKING   BY    THEFT,    FORCE    OR   FRAUD. 


173 


CHAPTER   XII. 


TAKING  BY  THEFT,  FORCE  OR  FRAUD. 


Section. 

Taking  by  theft,  trespass  or 
fraud 304 

Thief  acquires  no  title  to  the 
stolen  goods    ....  305 

Sale  in  market  overt  passed  title  306 

Markets  overt  unknowu  in  this 
country 307 

Replevin  of  stolen  goods  does 
not  depend  on  the  conviction 
of  the  thief     .        .        .        .308 

A  trespasser  acquires  no  title, 
and  can  convey  none  by  any 
sale 309 

Replevin  lies  for  goods  ob- 
tained by  fraud,  even  from 
one  "who  innocently  purcha- 
ses     310 

Innocent  purchaser  from  a  thief 
may  elect  to  affirm  the  con- 
tract as  against  the  thief        .  311 

Replevin  by  the  owner  of  goods 
sold  by  a  bailee  without  au- 
thority      313 

The  same.  Rights  and  author- 
ity of  a  bailee         .        .        .  313 

The  same.  Illustrations  of  the 
rule 814 

Replevin  lies  against  a  carrier 
for  goods  wrongfully  taken 
and  committed  to  his  care, 
and  such  carrier  has  no  lien 
on  the  goods  for  freight         .  315 

Replevin  lies  where  a  bailee 
pledges  goods  without  au- 
thority      316 


Section 

The  rule  when  an  agent  or 
bailee  with  authority  sells  at 
a  less  price  than  his  instruc- 
tions warrant  .... 

Fraudulent  purchaser  takes  a 
title  voidable  at  the  election 
of  the  defrauded  vendor 

Observations  on  the  rule   . 

The  same 

Illustrations  of  the  rule    . 

Not  material  at  what  time 
the  fraudulent  representations 
were  made       .... 

Goods  paid  for  with  a  worth- 
less note,  counterfeit  money, 
or  stolen  goods 

Replevin  against  attaching  cred- 
itors in  such  cases  . 

Or  against  an  assignee  for  the 
benefit  of  creditors 

Does  not  lie  for  g(jods  sold  to 
enable  the  purchaser  to  vio- 
late the  law,  even  though 
there  may  have  been  fraud  in 
the  purchase   .... 

For  goods  sold  to  an  infant, 
when  he  avoids  payment 

For  goods  obtained  by  duress  . 

The  general  rule  stated 

To  avoid  a  sale,  fraudulent  inten- 
tion of  purchaser  must  exist 

Diligence  required  of  one  who 
would  rescind  a  sale  for  fraud, 
return  or  tender  of  the  consid- 
eration      831 


317 


318 
319 
320 
321 


322 


323 


324 


325 


326 

327 

323 
329 

330 


174 


TAKING    BY   THEFT,    FOECE   OR    FKAUD. 


What  amounts  to  a  return  of 
property  ....        -  333 

Does  not  lie  against  an  inno- 
cent  purchaser  from  a  fraud- 
ulent  purchaser       .        .        .  333 

The  distinction  between  acquir- 
ing goods  by  theft  or  trespass, 
or  by  fraudulent  purchase     .  334 

The  same.  Observations  upon 
the  rule 335 

The  same 336 

The  same 337 


Rule  where  goods  fraudulently 
purchased  are  taken  in  pay- 
ment of  a  pre-existing  debt    . 

Sale  of  goods  upon  condition   . 

Non-payment  for  goods  sold  on 
credit  does  not  warrant  a  re- 
scission of  the  contract 

Rule  where  the  vendor  stipu- 
lates to  retain  title  or  posses- 
sion until  payment 

The  same.     Illustrations  . 

Waiver  of  conditions  of  sale     . 


338 
339 

340 


341 
345 
343 


§  304.  Taking  by  theft,  trespass  or  fraud.  With  the 
growth  of  the  common  law,  individual  title  to  property 
became  gradually  strengthened,  until  the  rule  became  crystal- 
ized  in  substantially  the  form  in  which  it  exists  in  the  Con- 
stitution of  these  States.  "No  man  shall  be  deprived  of  his 
property,  unless  b}^  his  own  consent  or  due  process  of  law." 
In  this  respect,  the  protection  given  to  property  was  next  to 
that  extended  to  life  and  liberty. 

§  305.  Thief  acquires  no  title  to  the  stolen  goods.  A  thief 
acquires  no  title  to  the  goods  he  steals  and  can  convey  none, 
by  any  sale  and  delivery  he  may  make.  The  owner  of  such 
stolen  goods  may  recover  them  from  whosoever  hands  he  linds 
them  in.i 

§  306.  Sale  in  market  overt.  An  exception  was  made  by 
the  common  law,  in  cases  where  goods  which  had  been  stolen, 
were  sold  in  market  overt.  Such  a  sale  passed  absi^lute  title 
to  the  purchaser.  But  the  ancient  law  prohibited  the  sale  of 
anything  above  the  value  of  twenty  pence,  except  in  market 
overt.  Sales  in  such  markets  were  exceedingly  formal  and 
open,  and  were  required  to  be  preceded  by  proof  of  ownership 
on  the  part  of  the  vendor,  so  that  there  was  little  danger  of 

'  2  Bla.  Com.  449;  Beazley  v.  Mitchell,  9  Ala.  780;  Saltus  v.  Everett,  20 
Wend.  275;  Sharp  v.  Parks,  48  111.  513;  Parham  v.  Riley,  4  Cold.  (Tenn.) 
9;  Hoffman  v.  Carow,  20  Wend.  20;  S.  C,  22  Wend.  285;  Courtis  v.  Cane, 
33  VL  232;  Lance  v.  Cowan,  1  Dana,  (Ky.)  195;  Arendale  ?).  Morgan,  5 
Sneed,  (Tenn.)  703;  Johnson  v.  Peck,  1  Wood  &  M.  C.  C.  334;  White  ?j. 
Speltigue,  1  Carr.  &  Ker.  673;  Florence  Sew.  Mach.  v.  Warford,  1  Sweeny. 
(N.  Y.)  433. 


EEPI.EVIN   OF    STOLEN   GOODS.  175 

stolen  goods  being  offered  without  immediate  detection  of  the 
thief.  1 

§  307.  Markets  overt  unknown  in  this  country.  But  mar- 
kets o^ert  are  unknown  to  the  law  of  this  countrj.s  Sales 
of  chattels  are  made  on  all  occasions  without  question,  the 
purchaser  and  seller  relying  on  the  eonlidence  eacli  has  in  the 
other.  This  confidence,  usually  well  placed,  is  sometimes 
betrayed  by  persons  who  obtain  goods  regardless  of  the  own- 
er's rights,  for  the  sole  purpose  of  making  way  witli  them. 
This  is  sometimes  done  by  theft,  sometimes  by  trespass,  but 
oftener  by  means  of  a  fraudulent  purchase,  followed  by  sale 
to  some  innocent  third  party.  Where  the  goods  have  been  so 
purchased,  the  question  is,  who  shall  bear  the  loss,  the  inno- 
nocent  and  defrauded  owner,  or  the  equally  innocent  purchaser. 
Where  the  goods  are  overtaken  in  the  hands  ot  the  wrongdoer, 
his  fraud,  as  we  shall  see,  is  no  protection,  but  where  they  are 
found  in  the  hands  of  a  bona  fide  purc'aaser,  for  value,  the 
question  presents  more  difficulty. 

§  308.  Replevin  of  stolen  goods  does  not  depend  on  the 
conviction  of  the  thief.  As  before  stated,  goods  acquired  by 
theft  or  robljery  do  not  vest  in  the  taker.  The  owner  may 
retake  them  in  this  action,  whether  he  finds  them  in  the  liands 
of  the  taker,  or  of  an  innocent  purchaser  for  value;  and  the 
conviction  of  the  thief,  which  was  under  the  ancient  law  a 
prerequisite,  is  not  now  a  necessary  condition  to  a  successful 
prosecution  of  the  suit.^ 

J  2  Bla.  Com.  449;  Hoffman  v.  Carow,  22  Wend.  285. 

■  Griffith  V.  Fowler,  18  Vt.  390;  Dame  v.  Baldwin,  8  Mass.  518;  Parham 
V.  Riley,  4  Cold.  (Tcnn.)  9;  Ventress  v.  Smith,  10  Peters,  161;  Newkirk  v. 
Dalton,  17  111.  415;  Lowry  v.  Hall,  2  W.  &  S.  (Pa.)  134. 

2  With  reference  to  the  necessity  of  a  conviction  of  the  thief  before  the 
owner  can  reclaim  his  stolen  property,  see  Foster  v.  Tucker,  3  Gr.  (Me.) 
458;  Newkirk  v.  Dalton,  17  111.  415;  Boston  &  W.  R.  R.  v.  Dana,  1  Gray, 
83;  Pettingill  v.  Rideout,  6  K  H.  454;  Short  v.  Barker,  23  Ind.  148;  Gor- 
don  V.  Hostetter,  37  N.  Y.  99;  Boody  v.  Keating,  4  Gr.  (Me.)  164;  Wells  v. 
Abraham,  L.  R.  7  Q.  B.  554;  Hoffman  v.  Carow,  22  Wend.  285.  The  law 
which  prohibited  a  private  action  against  the  thief  was  for  the  purpose  of 
compelling  the  owner  to  prosecute  him  to  conviction ;  the  right  to  recover 
was  suspended.  Crosby  v.  Leng,  12  East.  409.  Bat  the  prohibition  only 
extended  to  suit  against  the  thief,  therefore,  if  he  had  pawned  it  or  sold  it, 


176  TAKING  BY  THEFT,  FORCE  OK  FRAUD. 

§  309.  A  trespasser  acquires  no  title,  and  can  convey  none, 
by  any  sale.  One  who  wrongfully  takes  goods  without  the 
owner's  consent,  acquires  no  title  thereby,  and  can  conv^ey 
none,  by  any  sale  or  transfer  he  may  make.  So  when  such  a 
taker  sells  the  goods,  even  to  an  innocent  purchaser  for  value, 
the  owner  may  pursue  his  property  and  retake  it  wherever 
found.  Where  a  willful  trespasser  cut  logs  on  another's  land, 
and  sold  them  to  one  who  sold  them  to  an  innocent  purchaser 
for  value,  the  owner  was  permitted  to  recover  their  value  with 
interest,  from  such  purchaser;  or,  he  might  have  recovered 
the  logs  had  he  been  able  to  identify  them.i  "Where  the 
defendant,  by  his  encouragement,  procured  a  messenger  to 
leave  a  machine  with  him,  knowing  that  it  was  intended  for 
another,  and  afterward  made  some  repairs  on  it,  the  taking 
wasj  regarded  as  wrongful,  and  the  owner  might  sustain  re- 
plevin without  demand. 2 

§  310.  Replevin  lies  for  goods  obtained  by  fraud,  even  from 
one  who  innocently  purchases.  Where  a  party  procured  pos- 
session 01  leather  by  personating  another,  who  was  an  agent 
of  the  owner,  and  shipped  it  to  Chicago,  and  sold  it  in  open 
market,  the  real  owner  was  entitled  to  sustain  trover  against 
the  purchaser  fur  value.  The  possession  was  not  delivered  to 
the  vendor,  but  was  obtained  under  circumstances  which  might 
convict  him  of  embezzlement.  Under  such  circumstances  no 
title  passed,  and  the  taker  could  confer  none  by  sale.  Posses- 
sion is  one  of  the  indicia  of  ownership;  but  bare  possession 
is  not  title,  and  when  that  possession  is  obtained  by  force  or 
fraud,  it  confers  no  right. ^ 

the  owner  might  bring  liis  action  against  the  purchaser  or  the  pawnbrolvcr 
•without  waiting  for  conviction  of  tlie  tliief.  White  «.  Spettigue,  13  M.  & 
W.  G08.  Tliis  cannot  be  reconciled  with  Horwood  v.  Smith,  3  T.  R.  7')0; 
Gimson  v.  Woodfull,  2  Carr.  &  P.  41.  See  Stat.  34  and  25,  Victoria,  Chap. 
96,  §  100;  7  and  8  Geo.  IV.,  Chap.  20,  §  57. 

'  Nesbitt  X).  St.  Paul  Lumber  Co.,  21  Minn.  491.  See  Riley  c.  Boston 
Water  Power  Co.,  11  Cush.  11;  Riford  ».  Montgomery,  7  Vt.  418 ;  Courtis 
■0.  Cane.  32  Vt.  232;  Schulenberg  c.  Harriman,  21  Wall.  44;  AVilliams  ». 
Merle,  11  Wend.  80;  Gibbs  «.  Jones,  4G  111.  330. 

"  Purvis  V.  Moltz,  5  Robt.  (N.  Y.)  653. 

«  Fawcett  v.  Osborn,  32  111.  411. 


GOODS    SOLD    BY   BAILEE    WITHOUT    AUTHORITY.  177 

§  311.  Innocent  purchaser  from  a  thief  may  elect  to  affirm 
the  contract  as  against  the  thief.  While  the  sale  or  exchange 
of  stolen  goods  does  not  divest  the  owner  of  liis  title,  yet,  as 
between  the  thief  and  liis  vendee,  the  innocent  party  is  the 
only  one  able  to  avoid  the  sale.  Thus,  if  one  buy  or  exchange 
for  a  stolen  horse,  the  owner  can  recover  the  horse,  and  the 
purchaser  may  elect  to  rescind  the  contract  and  recover  the 
consideration,  or  he  may  affirm  the  contract  and  recover  the 
value  of  the  horse  from  the  thief  who  sold  him.^  When  "VV. 
traded  to  B.  a  horse  which  he  had  stolen,  and  then  sold  to  C. 
the  horse  he  received  from  B.,  B.  brought  replevin  against  C, 
and  it  was  held  he  could  not  recover.  This  was  not  a  case 
where  the  owner  of  the  stolen  horse  brought  suit,  but  the  plain- 
tiff was  seeking  to  recover  property  which  he  had  voluntarily 
sold  and  delivered,  and  something  that  had  come  into  the  pos- 
session of  a  hona  fide  purchaser  for  value.^  Some  of  the 
cases  assert  the  doctrine  that  one  who  receives  and  sells  stolen 
goods,  as  agent,  and  without  any  knowledge  pays  the  money 
to  the  thief,  is  liable  to  the  owner  for  the  value. ^  For  example, 
a  stable  keeper  who  receives  a  stolen  horse,  without  any  knowl- 
edge of  the  theft,  would  be  liable  in  replevin,  at  tlie  suit  of  the 
owner,  as  long  as  he  held  possession;  and  if  he  sells  the  horse, 
he  has  been  held  liable  for  the  proceeds,  and  the  fact  that  he 
has  paid  them  over  to  the  thief  has  been  said  to  be  no  defense.* 

§  312.  Replevin  by  the  owner  of  goods  sold  by  a  bailee 
without  authority.  If  a  bailee,  without  authority,  sell  goods 
entrusted  to  his  care,  even  though  the  purchaser  pay  full  value, 
and  have  no  knowledge  of  the  fraud,  still  the  owner  does  not 
lose  his  title.5     The  general  rule  is,  that  an  agent  cannot  bind 

»  Titcomb  -o.  Wood,  38  Me.  5G1;  Lee  v.  Portwood,  41  Miss.  Ill;  Smith  v. 
Graves,  25  Ark.  458. 

^  Brown  v.  Campsal],  6  Har.  &  J.  (Md.)  491.  Consult  Doe  t.  Martyr,  4 
Bos.  &  Pull.  332. 

3  Hoffman  v,.  Carow,  20  Wend.  20;  Same  c.  Same,  22  Wend.  285. 

^Spraigbts  c.  Hawley,  39  K  Y.  4-41;  Stanley  'c.  Gaylord,  1  Cush  536; 
Dudley  r>.  Hawley,  40  Barb.  397.  Compare  Rogers  b.  Huie,  2  Cal.  571 ; 
whore  the  contrary  is  lield. 

^  2  Kent,  324;  Hilliard  on  Sales,  23;  1  Parsons  on  Contracts,  44;  Dyer  v. 
Pearson,  (3  B.  &  C  )  10  E.  C.  L,  38;  Williams  v.  Merle,  11  Wend.  80;  Inger- 
12 


ITS  TAKING    BY   THEFT,   FORCE   OR   FRAUD. 

Lis  principal,  where  he  transcends  his  authority,  and  persons 
who  deal  with  an  agent  in  the  concerns  of  his  principal  onght 
to  know  the  extent  of  his  authority. ^  It  is  also  a  rule,  that 
mere  possession  of  chattels  will  not  authorize  a  transfer  of  a 
better  title  than  the  possessor  has.^  So,  where  a  mortgageor 
of  chattels  in  Illinois  took  them  to  Indiana  and  sold  them,  the 
court  said,  that  upon  a  proper  showing,  the  mortgagee  could 
recover  them,^  A  servant  who  sells  his  master's  goods  with- 
out authority  can  convey  no  title.*  So,  when  a  servant  quits 
the  employ  of  his  master,  and  takes  away  his  master's  goods, 
it  is  a  conversion,  and  replevin,  without  demand,  will  lie.^ 
"Where  one  hires  a  horse,  for  the  purpose  of  making  a  particu- 
lar journey,  and  goes  further,  he  is  liable,  and  the  owner  might 
sustain  replevin  or  trover;  but  if,  on  his  return,  he  informs 
the  owner  of  his  increased  journey,  and  he  accepts  paj'ment 
under  those  circumstances,  it  is  a  waiver  of  the  conversion. ^ 

§  313.  The  same.  Rights  and  authority  of  a  bailee.  The 
law  simply  requires  a  party,  in  dealing  with  an  agent  or  bailee, 
to  look  at  the  acts  of  the  principal.  Private  communications 
to  the  agent  would  not  generally  affect  the  rights  of  honafide 
third  parties  dealing  with  him  about  the  business  of  the  prin- 
cipal within  the  scope  of  his  agency.  If  one  send  his  liorse 
to  a  place  where  horses  are  shod,  it  confers  no  authority  on 
the  smith  to  sell;  but  if  he  send  his  horse  to  an  auction  stable, 

soil  V.  Emmerson,  1  Carter,  find.)  78;  Stanley  v.  Gaylord,  1  Cash.  530; 
Kitchell  «.  Vanadar,  1  Blackf.  (Ind.)  356;  Pribble  «.  Kent,  10  Ind.  325; 
Johnson  v.  Willey,  46  N.  11.76;  Sanborn  n.  Colman,  6  N.  H.  14;  Poole  v. 
Adkisson,  1  Dana,  110;  Roland  b.  Gundy,  5  Ohio,  202;  Lovejoy  ».  Jones, 
30  N.  H.  169;  Sargent «.  Gile,  8  N.  H.  325;  Galvin  v.  Bacon,  2  Fairfield, 
(Me.)  28;  Nash  v.  Mosher,  19  Wend.  431;  Howlaud  v.  Woodruff,  60  N.  Y. 
74;  Neff  t).  Thompson,  8  Barb.  213;  Sarjeant  v.  Blunt,  16  Johns.  74;  Wil- 
son  V.  Nason,  4  Bosw.  155;  Lecky  v.  M'Derniott,  8  S.  &  R.  (Pa.)  500.  Coin- 
pare  Drumraond  v.  Hopper,  4  Har.  (Del.)  327. 

'  Cases  last  cited.     Scheramelpennich  v.  Bayard,  1  Pet.  264. 

«  Hotchkiss  «.  Hunt,  49  Me.  213;  Covill  «,  Hill,  4  Deuio,  327. 

»  Blystone  v.  Burgett,  10  Ind.  28;  Martin  v.  Hill,  12  Barb.  G31.  See  Bar. 
ker  t).  Stacy,  25  Miss.  477;  OffuU  v.  Flagg,  10  N.  H.  46;  Jones  v.  Taylor, 
30  Vt.  42. 

*■  Trudo  ©.  Anderson,  10  Mich.  357. 

»  Pillsbury  p.  Webb,  33  Barb.  214. 

» Rotch  V.  Hawes,  12  Pick.  136. 


GOODS   SOLD   BY   BAILEE   WITnOUT    AUTHORITY.  179 

it  will  not  be  presumed  that  he  was  sent  there  for  safe  keep- 
ing, but  for  the  purpose  of  sale  generally  carried  on  there. ^ 
If,  therefore,  in  the  latter  case,  the  agent  sell  the  horse,  even 
on  different  terras  than  his  private  instructions  warrant,  the 
sale  would  be  good;^  but  if  the  ordinary  business  of  the 
agent  was  for  purposes  other  than  sale  of  horses,  the  sale 
would  confer  no  title  except  such  as  the  agent  was  specially 
entrusted  with.  Purchasers  must  ascertain  his  authority  at 
their  peril.  A  purchase  from  an  agent  without  authority, 
even  though  the  purchaser  pay  full  value,  and  acts  in  good 
faith,  carries  no  title,  and  the  owner  may  sustain  replevin. ^ 

§  314.  The  same.  Illustrations  of  the  rule.  If  a  man  send 
his  goods  to  an  agent  to  be  sold  on  his  account,  and  the  latter 
sell  them  to  his  creditor  for  the  payment  of  his  own  debt,  the 
title  of  the  owner  is  not  thereby  divested,  and  replevin  will  lie 
even  against  a  subsequent  purchaser,  without  notice.^  But 
where  one  obtain  goods  fraudulently,  and  bail  them  to  another, 
the  bailee  may  surrender  to  the  true  owner,  and  may  show 
such  facts  as  a  bar  to  any  suit  against  himself  by  the  bailor. ^ 
"When  A.  contracted  for  a  boiler  and  engine  of  certain  power, 
and  paid  seven  hundred  dollars  on  it,  the  maker  to  take  it 
back  and  refund  the  money  if  it  did  not  prove  sufficient;  it 
proved  insufficient,  and  the  maker  refused  to  receive  it;  but 
some  months  afterwards  asked  A.  to  let  him  take  it,  prom- 
ising to  pay  for  the  use  of  it.  Soon  after  obtaining  it,  he 
mortgaged  it  to  one  who  had  no  notice.  A.  brought  replevin, 
and  recovered.     Even  if  the  bailee  had  a  right,  as  he  claimed, 

'  Pickering  v.  Busk,  15  East,  39;  Hicks  v.  Hankin,  4  Esp.  114;  Stanley 
V.  Gaylord,  1  Cush.  544. 

2  Siirjeant  v.  Blunt,  16  Johns.  74;  Moore  v.  McKibbin,  33  Barb.  246; 
McMorris  v.  Simpson,  21  "Wend.  610. 

3  East  India  Co.  v.  Hensley,  1  Esp.  112;  Johnson  v.  Willey,  46  N.  H.  75; 
Fenn  v.  Harrison,  3  D.  &  E.  754;  Sanborn  v.  Colman,  6  N.  H.  14;  Lovejoy 
r.  Jones,  10  Foster,  165;  Sargent  v.  Gill.  8  N.  H.  325;  Jefferson  v.  Chase,  1 
Houst.  (Del.)  219.     Compare  Stanley  v.  Gaylord,  1  Cush.  544. 

*  Galvin  v.  Bacon,  11  Me.  28;  Parsons  v.  Webb,  8  Gr.  (Me.)  38;  Herron 
T.  Hughes,  25  Cal.  556 ;  Loeschman  v.  Machin,  2  Stark.  311 ;  Hyde  v.  Noble, 
13  N.  H.  404. 

'  Bates  V.  Stanton,  1  Duer.  (N.  Y.)  79. 


ISO  TAKING  BY  THEFT,  FORCE  OR  FRAUD. 

to  sell  it,  he  liad  no  ri^lit  to  inortjiao-e.i  This  rule  is  based 
upon  the  assumption  that  the  title  of  the  original  owner  re- 
mains unimpaired  by  any  fraudulent  act  of  the  bailee;  that 
the  bailee,  having  no  title,  cannot  convey  any  by  sale  or  trans- 
fer, and  that  a  purchaser  from  such  bailee  takes  no  title,  but 
simply  a  possession,  without  other  right.^ 

§  31 5.  Replevin  lies  against  a  carrier  for  goods  wrongfully 
taken  and  committed  to  his  cars.  Such  carrier  has  no  lien  on 
the  goods  for  freight.  A  common  carrier,  who  receives  goods 
from  a  wrongful  taker,  without  knowledge  of  the  wrong,  can- 
not resist  the  action  by  the  true  owner. ^  Neither  can  he  as- 
sert a  lien  for  his  services  as  such  carrier.^  Where  an  inn- 
keeper was  sued  in  replevin  for  a  horse,  and  the  defendant 
claimed  a  lien  for  his  keeping,  and  plaintiff  contended  that  the 
horse  had  been  stolen.  Lord  Holt  said  the  innkeeper  is  not 
bound  to  consider  who  is  the  owner  of  the  horse,  but  whether 
he  who  brings  him  is  his  guest. ^  This  latter  ruling,  however, 
was  disregarded  in  the  cases  before  cited.  There  may  be  a 
distinction  between  an  innkeeper  who  feeds  a  horse,  which  is 
necessary  to  save  the  animal,  and  is  for  the  owner's  benefit, 
and  a  carrier  who  transports  goods,  which  may  be  to  the  injury 
of  the  owner.  But  the  cases  are  tolerably  clear  that  a  carrier 
cannot  set  up  a  lien  against  the  true  owner  for  his  carriage  of 
such  goods,  since  he  may  demand  his  charges  in  advance,  if  he 
be  so  minded.  The  action,  however,  would  not  lie  without 
demand.^ 

§  316.  Replevin  lies  where  a  bailee  pledges  goods  with- 
out authority.  When  the  owner  of  i:)Ork  in  a  warehouse 
entrusted  the  warehouse  receipts  to  a  party  to  repack  it,  and 

'  Stevens  t>.  Cunningham,  3  Allen,  (Mass.)  492.  See,  also,  Nash  n.  Mosher, 
19  Wend.  431;  Triuln  n.  Andorson,  10  Mich.  357;  Ballou  v.  O'Brien,  20 
Mich.  y04;  Legal  News,  April  7,  1877,  237. 

2  Ingersoll  «.  Eniracrson,  1  Carter,  (Ind.)  79. 

^  Fitch  v.  Newberry,  1  Doug.  (Mich.)  1 ;  Robinson  «.  Baker,  5  Cush.  137; 
Van  Buskirk  v.  Purinton,  2  Hall,  (N.  Y.)  561;  Collman  t.  Collins,  2  Hall, 
(N.  Y.)  509. 

■1  Kinsey  v.  Leggett,  71  N.  Y.  387, 

*•  Yorke  ».  Grenaugh,  2  Ld.  Raym.  806. 

*  Fitch  V.  Newberry,  1  Doug.  (Mich.)  1. 


FRAUDULENT  PURCHASER.  181 

the  latter  pledged  the  receipts  as  collateral  for  a  loan  of 
inonev,  and  in  default  of  payment  the  lender  sold  the  pork, 
the  real  owner  was  permitted  to  sustain  replevin,  although  an 
innocent  j)arty  purchased  for  value  J 

§  317.  The  rule  when  an  agent  or  bailee  with  authority 
sells  at  a  less  price  than  his  instructions  warrant.  When  an 
agent  or  bailee,  with  authority  to  sell,  does  sell  at  a  less  price 
than  his  instructions  warrant,  he  is  not  guilty  of  conversion; 
nor  would  a  purchase  from  him,  unless  fraudulent,  render  the 
purchaser  liable  to  the  owner  either  for  the  value  or  for  the 
goods.3  In  such  case  the  sale  is  in  pursuance  of  the  authority 
delegated,  and  the  law  does  not  hold  a  purchaser  responsible 
that  the  agent  observes  the  details  of  his  instructions.  It  is 
enough  that  the  purchaser  assure  himself  that  the  agent  has 
authority  to  sell  and  receive  payment,  and  in  such  case,  if  the 
agent  abscond  with  the  proceeds,  the  principal  by  whose 
authority  he  acted  must  assume  the  loss. 

§  318.  Fraudulent  purchaser  takes  a  title  voidable  at  the 
election  of  the  defrauded  vendor.  A  sale  and  delivery  of 
goods,  procured  through  the  fraudulent  representations  of  tl;e 
buyer,  with  intent  to  cheat  the  seller,  may  be  avoided  by  the 
latter.  In  such  case,  as  between  the  vendor  and  purchaser,  a 
voidable  title  to  the  property  passes.^  The  fraud  practiced  is 
regarded  as  sufficient  to  avoid  the  contract,  if  the  innocent 
party  so  elect.  The  fraudulent  purchaser,  however,  cannot, 
avoid  it  on  the  ground  of  his  own  fraud.  Tlie  real  owiier  may 
prefer  to  treat  him  as  a  purchaser  and  recover  value,  or  he 
may   elect   to   rescind   the    sale   and    recover    his   goods   in 

'  Burton  v.  Curyea,  40  111.  334.  As  before  stated  repleviu  lies  for  per- 
sonal chattels  only.  Where  one  hires  chattel  property  and  fixes  it  to  real 
estate,  and  sells  it  so  fixed  to  one  who  has  no  notice,  the  owner  cannot  re- 
cover from  the  innocent  purchaser,  because  it  has  become  part  of  tne 
realty.     Fryatt  v.  The  Sullivan  Co.,  5  Hill,  (N.  Y.)  117. 

'■*  Dufresne  v.  Hutchinson,  3  Taunt.  117;  Sarjeant  v.  Blunt,  16  John.  74; 
Laverty  v.  Snethan,  Cent.  Law  J.  April,  1877,  330;  Scott  v.  Rogers,  31  N.  Y. 
67o. 

3  Ayres  v.  Hewitt,  19  Me.  281 ;  Hunter  v.  Hudson  River  Iron  Co.,  20  Barb. 
404;  Nichols  B.Michael,  23  N.  Y.  2GG;  Nichols  v.  Pinner,  18  N.  Y.  295;  Sar- 
gent  V.  Sturm,  23  Cal.  359. 


182  TAKING  BY  THEFT  FORCE  OR  FRAUD. 

replevin.*  The  rule  may  be  regarded  as  settled  that  where 
goods  are  obtained  from  the  owner  by  fraudulent  purchase,  he 
can  sustain  replevin  against  the  fraudulent  purchaser  so  long 
as  the  goods  are  in  his  possession. ^ 

§  319.  Observations  on  the  rule.  An  exceedingly  plausi- 
ble distinction  was  taken  in  a  New  York  case,  where  it  was 
said  that  the  goods  having  been  sold  and  delivered  to  the  de- 
fendant, the  plaintiff  had  voluntarily  parted  with  his  actual 
as  well  as  his  constructive  possession,  that  as  the  taker  had 
acquired  possession  by  delivery  from  the  owner,  trespass  would 
not  lie,  and  that  as  replevin  was  strictly  concurrent  with 
trespass,  replevin  would  not  lie;^  but  the  correctness  of  this 
ruling  has  been  doubted,*  the  error  lying  in  the  assumption 
that  trespass  and  replevin  are  strictly  concurrent.  And  upon 
the  same  point  being  presented  again,  the  court  held  squarely 
that  trespass,  trover,  or  replevin  in  the  cepit  or  detinet  would 
be  proper  in  such  case.^     In  this  case  the  court  says  that 

'  Rowley  v.  Bigelow,  12  Pick  307;  Lloyd  v.  Brewster,  4  Paige,  541 ;  Gray 
«.  St.  Johns,  35  111.  239;  Titcomb  ».  Wood,  38  Me.  563;  Hall  ^.  Naylor,  IS 
N.  Y.  588;  Gary  v.  Hotailing,  1  Hill,  311;  Ash  v.  Putnam,  1  Hill,  302; 
Glmstead  v.  Hotailing,  1  Hill,  317;  Matteawan  Co.  «.  Bentley,  13  Barb.  641; 
Hall  V.  Gilmore,  40  Me.  581 ;  Seaver  v.  Dingley,  4  Gr.  (Me.)  307 ;  Gray  «.  St. 
John,  35  111.  239.  Consult  Bristol  «.  Wilsmore,  1  B.  &  C.  514;  Kilby  «. 
Wilson,  1  R.  &  Moody,  178;  Van  Cleef  v.  Fleet,  15  Johns.  149;  Hill  v. 
Freeman,  3  Cush.  259;  Hussey  «.  Thornton,  4  Mass.  405;  Marston  ».  Bald- 
win, 17  Mass.  606;  Smith  «.  Dennis,  6  Pick.  262;  Bowen  «.  Schuler,  41  111. 
193;  Mackiuley  v.  M'Gregor,  3  Whart.  (Pa.)  368. 

«  Acker  o.  Campbell,  23  Wend.  372;  Abbotts  v.  Barry,  (2  Brod.  «&  Bing.)  6 
E.  C.  L.  370;  Browning  v.  Bancroft,  8  Met.  278;  Coghill  i;.  Boring,  15  Cal. 
217;  Weed  v.  Page,  7  Wis.  503;  Welker  v.  Wolverkuehler,  49  Mo.  36;  An- 
drew «.  Dieterich,  14  Wend.  32;  Malcom  «.  Loveridge,  13  Barb.  372;  Allison 
•0.  Matthieu,  3  Johns.  235;  Keyser  «.  Harbeck,  3  Dner.  373;  Williams?;. 
Given,  6  Gratt.  268;  Jennings  «.  Gage,  13  111.  610;  Titcomb  v.  Wood,  38  Me. 
561;  Caldwell  ■».  Bartlett,  3  Duer.  341;  Stephenson  «.  Hart,  4  Bing.  476; 
Bristol  '0.  Wilsmore,  1  B.  »&  Cress.  514;  Manning  ®.  Albee,  14  Allen,  8;  Noble 
V.  Adams,  7  Taunt.  59. 

*  M'Carty  v.  Vickery,  12  John.  348.  Compare  Nash  v.  Mosher,  19  Wend. 
431;  Marshall  v.  Davis,  1  Wend.  109.  These  cases  only  hold  that  trespass 
does  not  lie  against  one  who  lawfully  acquires  possession,  even  though  the 
original  taker  was  a  wrong-doer. 

"  Butler  D.  Collins,  12  Cal.  457;  Ash  v.  Putnam,  1  Hill,  307;  Barrett  v. 
Warren,  3  Hill,  348. 

»  Gary  %.  Hotailing,  1  Hill,  312. 


FRAUDULENT  PUECHASEK.  183 

ITCarty  v.  Y'lckery  stands  alone,  all  the  other  cases  on  this 
subject  being  the  other  way.^ 

§  320.  The  same.  "When  consent  of  the  vendor  is  urged 
as  an  element  to  be  weighed,  it  must  be  remembered  that 
consent  of  a  person  to  the  sale  of  his  goods  means  something 
more  than  the  simple  utterance  of  the  words  of  assent,  and 
something  more  than  a  manual  relinquishment  of  them.  It 
must  be  an  act  of  the  mind,  unclouded  by  fraud,  falseliood  or 
duress  at  the  hands  of  the  purchaser.  "Whether  the  degree  of 
fraud  is  sufficient  to  warrant  the  tinding  of  an  indictment  or 
not,  is  of  no  consequence  in  a  civil  action, ^  In  such  case  the 
law  holds  tliat  the  goods  did  not  lawfully  come  into  the  pos- 
session of  the  defendant, 3 

§  321,  Illustrations  of  the  rule.  "When  tlie  defendant  rec- 
ommended L,  as  a  man  of  means,  and  induced  the  plaintiff  to 
sell  him  furniture,  L.  soon  after  absconded,  after  having 
transferred  tlie  furniture  and  other  ofoods  to  the  defendant. 
The  plaintiff  was  permitted  to  prove  that  the  defendant  had 
recommended  L.  in  like  manner  to  others,  and  that  the  goods 
so  obtained  were  transferred  to  the  defendant,  as  a  circum- 
stance to  show  knowledge  on  his  part,*  Defendant  by  forged 
letters  of  recommendation,  and  other  false  representations, 
bought  goods,  and  paid  in  bills  which  he  represented  to  be 
accepted  by  a  wealthy  business  man,  but  which  were  in  fact 
accepted  by  an  accomplice  for  fraudulent  purposes.  The 
goods  were  delivered,  and  shortly  after  levied  on  bj'  the  sheriff 
with  an  execution.  In  trover  against  the  sheriff,  it  was  held 
no  property  passed  and  that  the  owner  could  recover.  ^  "Where 
one  represents  himself  or  his  firm  to  be   solvent,  when   he 

'  See  Olmsted  v.  Hotailing,  1  Hill,  317.  In  Trapnall  v.  Hcattier,  1  Eng. 
(Ark.)  23,  wliei'e  a  very  similar  course  of  argument  with  M'C.'arty  ».  Viek- 
cry  was  pursued,  but  the  question  presented  in  Arkansas  involved  an 
innocent  purchaser. 

2  Irving  V.  Motly,  7  Bing.  543;  Poor  v.  Woodburn,  25  Vt.  234;  Acker  v. 
Campbell,  23  Wend.  373. 

3  Seaver  v.  Dingley,  4  Gr.  (Me.)  307;  Thurston  v.  Blanchard,  23  Pick.  20; 
flail  ©.  Gilmore,  40  Me.  581 ;  Gray  v.  St.  John,  35  111.  239. 

<  Allison  ■B.  Matthieu,  3  Johns.  235. 

•  Tamplin  v.  Addj'-,  in  note  to  Mowry  v.  Welsh,  8  Cow.  238, 


1S4  TAKING    BY    THEFT,    FORCE   OR   FRAUD. 

knows  it  to  be  insolvent,  and  purchases  with  intent  not  to 
pay,  such  fraud  will  avoid  the  sale,  and  the  owner  maj  sustain 
replevin;!  and  the  administrator  of  the  defrauded  vendor  may 
sustain  the  action,  as  well  as  the  deceased  seller. ^ 

§  322.  Not  material  at  what  time  the  fraudulent  repre- 
sentations were  made.  It  is  not  material  whether  the  fraudulent 
representations  were  made  at  the  exact  time  of  the  purchase 
or  some  time  previous.  It  is  sufficient  if  the  goods  were 
obtained  through  their  iniluence;^  or  the  fraudulent  intent 
may  be  gathered  from  the  acts  of  the  purchaser  after  the 
sale.* 

§  323.  Goods  paid  for  with  worthless  note,  counterfeit 
money,  or  stolen  goods.  When  the  vendor  was  induced  by 
the  fraudulent  representations  of  the  buyer,  to  sell  goods  and 
take  the  notes  of  a  worthless  third  party  in  payment,  it  would 
not  deprive  the  defrauded  vendor  of  his  right  to  his  goods, 
even  when  he  had  negotiated  the  note  for  value,  and  not 
reclaimed  it,  unless  he  had  knowledge  of  the  fraud  at  the 
time  he  parted  with  it.^  So  Mdiere  one  purchase  goods  and 
pays  for  them  with  counterfeit  money,^  or  with  other  goods 
which  he  has  stolen.'^  In  these  and  similar  cases  the  defrauded 
vendor  may  recover  his  goods  from  the  IVaudulent  purchaser, 
though  not  from  a  hona  fide  purchaser  from  such  party  for 
value. 

§  324.  Replevin  against  attaching  creditors  in  such  cases. 
It  seems  to  be  the  law  that  when  one,  through  fraudulent  rep- 
resentations as  to  his  solvency,  purchases  and  obtains  goods 
on  credit,  and  they  are  subsequently  attached  by  his  creditors, 
that  the  defrauded  vendor  can  sustain  replevin  as  against  the 

1  Ash  1?.  Putnam,  1  Hill,  (K  Y.)  308;  Bristol  v.  Wilsmore,  1  Burn.  &  Cress. 
515;  Kilby  w.  Wilson.  Ry.  &  Moody,  (K  P.)  178;  Atkin  v.  Barwick,  1  Stra. 
165 ;  Jolinson  t.  Peck,  1  Wood  «&  Minot.  C.  C.  334;  Powell  v.  Bardlee,  9  Gill. 
&  J.  (Md.)  220. 

-  McKnight  V.  Morgan,  2  Barb.  171;  Patton  v.  Campbell,  70  111.  74 

2  Seaver  v.  Dingley,  4  Greenleaf,  (Me.)  307. 

*  Bowen  v.  Schulcr,  41  111.  194;  Allison  v.  Matthieu,  3  Johns.  235. 
«  Manning  v.  Albee,  11  Allen,  520;  S.  C,  14  Allen,  8. 

•  Green  v.  Humphrey,  50  Pa.  St.  213. 

'  Titcomb  v.  Wood,  38  Mc.  5G3;  Lee  v.  Portwood,  41  Miss.  111. 


FRAUD   IN    THE   PUECHASE.  1S5 

creditors.  Of  course,  as  against  the  debtor  the  right  of  the 
attaching  creditors  is  paramount,  but  they  can  only  sustain 
their  claim  on  the  ground  tliat  the  goods  belong  to  the  fraud- 
ulent purchaser.  The  purchaser's  only  title  to  them,  however, 
being  fraudulent,  and  having  been  rescinded  by  the  original 
and  prior  owner,  the  attaching  creditors  cannot  resist  the  suit 
of  the  defrauded  vendor,  i 

§  325.  Or  against  an  assignee  for  the  benefit  of  creditors. 
So  in  case  of  a  voluntary  assignment  for  tlie  benefit  of  cred- 
itors of  goods  fraudulently  purchased,  the  assignment  passed 
no  title  and  conferred  no  rights,  for  the  obvious  reason  that 
the  party  making  it  liad  no  right  or  title  (as  against  the  plain- 
tiff's,) which  he  could  confer  on  anybody.  Therefore,  the  de- 
fendant's act  in  taking  possession  was  an  interference  with  the 
plaintiff's  constructive  possession.  The  defendant's  act  in 
assuming  dominion  over  the  property  was  none  the  less  an 
invasion  of  the  plaintiff's  riglits  because  he  did  not  intend  a 
wrong,  or  know  that  he  was  committing  one.  The  law  gives 
the  plaintiff  compensation  for  the  injury  he  sustains,  wdiether 
the  defendant  intended  it  or  not.^ 

§  326.  Does  not  lie  for  goods  sold  to  enable  the  purchaser 
to  violate  the  law,  even  though  there  may  have  been  fraud 
in  the  purchase.  Where  a  party  sought  to  recover  intoxica- 
ting liquors  from  the  possession  of  the  sheriff,  who  had  seized 
them  on  process  of  attachment  against  the  goods  of  the  pur- 
chaser, on  the  ground  that  he  purchased  them  frcra  the  plain- 
tiff  by  fraudulent  representations,  the  court  refused  to  sustain 
the  action,  saying  that  the  liquors  were  sold  to  enable  the  pur- 
chaser to  evade  the  law,  and  the  court  would  not  give  him  its 
aid.3 

§  327.  For  goods  sold  to  an  infant,  when  he  avoids  pay- 
ment.    "When  goods  are  sold  to  an  infant  and  he  avoids  pay- 

'  BufBngton  v.  Gerrish,  15  Mass.  158. 

»  Farley  v.  Lincoln,  51  N.  H.  579;  Barrett  v.  TVarrefl,  3  Hill,  330;  Poor 
V.  Woodburn,  25  Yt.  240.  Where  the  sale  is  procured  througli  fraudulent 
representations,  if  the  vendee  holds  nothing  of  any  value  he  may  sustain 
replevin  or  trover  without  demand,  because  the  taking  was  tortious.  Thayer 
V.  Turner,  8  Met.  550. 

«  JMarienthal  v.  Shafcr,  6  Iowa,  226. 


1S6  TAKING  BY  THEFT,  FORCE  OR  FRAUD. 

ment  on  the  ground  of  infancy,  the  seller  may  rescind  the  sale 
and  replevy  the  goods,  ^ 

§  328.  For  goods  obtained  by  duress.  TVhen  a  party 
falsely  and  maliciously,  without  probable  cause,  sue  out  a  war- 
rant regular  in  form  and  cause  the  arrest  of  another,  and 
thereby  induce  him  to  deliver  goods  to  obtain  his  release,  the 
party  so  defauded  may  sustain  replevin  for  his  goods,^  as  the 
law  ^vill  not  permit  the  use  of  its  process  to  aid  in  the  perpe- 
tration of  a  fraud.  3  The  law,  however,  will  not  aid  a  party  to 
enforce  a  contract  made  to  defraud  others.  When  the  prop- 
erty is  sold  without  consideration  for  the  purpose  to  defraud 
creditors,  the  purchaser  cannot  sustain  replevin.* 

§  329.  The  general  rule  stated.  The  rule  is  concisely  stated 
in  a  Pennsylvania  case.  "  AVlien  an  apparent  state  of  owner- 
ship of  property  produced  by  the  consent  or  collusion  is  the 
means  of  deceiving  third  persons,  the  owner  cannot  enforce 
his  rights  against  such  persons  in  replevin,"^ 

§  330.  Fraudulent  intention  of  purohaser  must  exist  to 
avoid  a  sale.  "Where  a  party,  believing  himself  to  be  solvent, 
orders  goods  on  credit  which  are  shipped  and  delivered  to  him, 
his  subsequent  insolvency  or  inability  to  pay  will  not  be 
ground  for  rescinding  the  contract  of  sale.  In  such  case,  if 
the  purchaser  receives  the  goods  and  executes  a  note,  or  accepts 
draft  in  compliance  with  the  terms  of  the  contract,  the  ven- 
dors cannot  in  the  absence  of  fraud  at  the  time  of  the  purchase, 
annul  the  contract  and  sustain  replevin,  even  though  the  pur- 
chaser knew  himself  to  be  insolvent  at  the  time  of  receiving 
the  goods  and  accepting  the  draft.  ^  If  the  purchaser,  at  the 
time  of  the  arrival  of  the  goods,  knowing  himself  to  be  insol- 
vent, should  refuse  to  accept  them,  and  direct  their  return  to 
the  vendor,  the  sale  would  be  incomplete,  and  the  vendor 
might  maintain  replevin  as  against  any  creditor  who  should 

'  Badger  v.  Phinjtey,  15  Mass.  359. 

*  Foshay  v.  Ferguson,  5  Hill,  156. 
»  Watkins  v.  Baird,  6  Mass.  506. 

*  Payne  v.  Brulon,  5  Eng.  (10  Ark.)  53. 
«  Dannels  v.  Fitch,  8  Pa.  St.  497. 

*  Greaner  v.  Mullen,  15  Pa.  St.  206. 


TENDER   OF   THE    CONSIDEKATION.  1S7 

attempt  to  seize  upon  tlieni.  Such  a  course  met  the  approval 
of  Lord  Mansfield,  1  Or  perhaps  the  receiving  of  the  goods 
bj  the  vendee  and  placing  them  in  his  warehouse,  separate 
and  apart  from  his  goods,  with  a  view  to  their  return  intact, 
with  the  intent  only  to  protect  them  from  loss  or  injury  until 
they  could  be  returned,  would  be  sufficient  to  entitle  the  ven- 
dors to  reclaim  them  against  creditors  who  might  seize  thera.^ 
Mere  omission  to  disclose  insolvency  will  not  avoid  a  sale,  a 
purchase  made  during  an  honest  though  hopeless  attempt 
to  continue  business,  where  no  questions  are  asked  of  the 
purchaser,  is  not  fraudulent.  There  must  be  some  positive 
fraudulent  representation. ^ 

§  331.  Diligence  required  of  one  who  would  rescind  a  sale 
for  fraud,  return  or  tender  of  the  consideration.  The  party 
who  would  assert  his  title  to  property  which  has  been  obtained 
from  him  by  fraud  must  exercise  a  certain  degree  of  diligence 
to  ascertain  and  protect  his  rights  or  he  will  be  held  to  have 
waived  or  lost  them.  When  the  plaintiff  claimed  that  a  horse 
was  stolen  from  him  by  R.  in  a  suit  against  one  who  claimed 
to  be  a  hona  fide  purchaser  from  E.,  the  fact  that  the  plain- 
tiff had  neglected  for  several  years  to  proceed  against  E,.  wlio 
was  responsible,  and  who  lived  in  the  same  county,  was  held 
proper  defense.*  Where  a  party  seeking  to  rescind  a  sale  on 
the  ground  of  fraud  has  received  any  valuable  consideration 
for  the  property,  he  must  put  the  other  party  in  as  good  con- 
dition as  he  was  before  by  restoring  to  him  whatever  he  has 
paid  on  the  contract.  Thus,  where  the  vendor  charges  fraud, 
and  seeks  to  set  aside  a  sale  for  which  the  purchaser  has  given 
his  note,  he  must  return  the  note.^  The  party  seeking  to 
rescind  is  not  required,  however,  to  deliver  the  note  or  other 

'  Harman  v.  Fishar,  1  Cowper,  117. 
«  James  v.  Grifflo,  3  Mees  &  W.  622. 

3  Nichols  v.  Pinnen,  18  N.  Y.  295;  Conyers  v.  Ennis,  3  Mason,  237;  Pow- 
ell  V.  Bradlee,  9  Gill  &  J.  (Md.;  220. 

4  "Welker  v.  Wolverkuehler,  49  Mo.  35 ;  Smith  v.  Field,  5  Terra  R.  403, 
(211) ;  Furniss  d.  Hone,  8  Wend.  248 ;  Mackinley  i).  M'Gregor,  3  Wliart.  (Pa.) 
308;  Coghill  ».  Boring,  15  Cal.  213.  Compare  Marston  «.  Baldwin,  17 
Mass.  611. 

«  Nichols  V.  Michael,  23  N.  T.  264;  Wilbur  v.  Flood,  16  Mich.  40. 


188  TAKING    BY   THEFT,    FOECE    OB   FEAUD. 

consideration  in  advance  of  obtaining  the  goods  sold.*  And 
the  current  of  authorities  hold  it  is  sutiicient  if  the  ofi'er  to 
surrender  be  made  on  the  trial. ^  Where  the  fraudulent  party 
has  so  complicated  the  transaction  that  the  others  cannot 
restore,  the  law  will  only  require  him  to  restore  as  far  as  he 
can;3  but  unless  the  tender  be  made  before  verdict  it  will  be 
too  late,  and  the  defendant  may  have  a  new  trial.* 

§  332.  What  amounts  to  a  return  of  property.  A  party 
claiming  to  be  damaged  by  false  representations  in  a  horse 
trade,  must  return  tlie  horse  he  received.  Merely  leaving  it 
in  the  defendant's  yard  without  any  notice  of  his  purpose  to 
rescind  the  contract,  although  lie  sued  the  defendant  at  the 
time,  is  not  a  rescission  within  the  meaning  of  the  rule.  Had 
lie  tendered  the  horse  to  defendant,  or  taken  reasonable  means 
to  do  so,  and  the  defendant  had  avoided  him,  it  might  have 
been  sufficient. ^  He  must  put  the  other  party  in  the  same 
condition  he  was  before,  ^.  e.,  he  must  restore  what  he  received 
before  he  can  sustain  replevin. ^ 

§  333.  Does  not  lie  against  an  innocent  purchaser  from  a 
fraudulent  purchaser.  The  right  of  a  vendor  to  recover  from 
one  who  fraudulently  purchases  his  goods  with  the  intent  not 
to  pay  for  them,  is  clear  and  well  settled,  but  when  the  fraud- 
ulent purchaser  has  sold  and  transferred  the  goods  to  another, 
who  has  no  notice  of  the  fraud  and  who  has  paid  value  for  them, 
the  question  as  to  the  respective  rights  of  the  deceived  vendor 
and  the  innocent  purchaser,  presents  more  difficulty.'^ 

>  Poor  V.  Woodburn,  25  Vt.  239. 

«  Weed  V.  Page,  7  Wis.  511 ;  Nichols  v.  Michael,  23  N.  Y.  264;  Jennings 
ij.  Gage,  13  111.  611;  Nellis  v.  Bradley,  1  Sandf.  (N.  Y.)  560;  Thurston  v. 
Blanchard,  22  Pick.  20;  Coghill  v.  Boring,  15  Cal.  217;  Kimball  v.  Cun- 
ningliam,  4  Mass.  502;  Poor  ■o.  Woodburn,  25  Vt.  235;  Voorhees  v.  Earl,  3 
Hill,  288;  Buchenau  v.  Horney,  12  111.  33.7;  Ryan  v.  Brant,  42  111.  79;  Smith 
r.  Doty,  24  111.  163;  Matteawan  Co.  v.  Bentley,  13  Barb,  G41;  contra  Mori- 
aty  r.  Stopperan,  89  111.  528. 

8  Masson  v.  Bovet,  1  Douio,  73. 

*  Ayres  v.  Hcwett,  10  Mc.  286;  Manning  v.  Albee,  11  Allen,  520. 
»  Thayer  v.  Turner,  8  Met.  553;  Perley  v.  Balch,  23  Pick.  283. 

•  Conner  v.  Henderson,  15  Mass.  320;  Kimball  v.  Cunningham,  4  Mass. 
502;  Thayer  v.  Turner,  8  Met.  552;  Thurston  v.  Blanchard,  22  Pick.  18. 

'  Consult  Mitchell  v.  Wordcn,  20  Barb.  253;  Nichols  v.  Pinner,  18  N.  Y. 
295;  Malcom  «.  Loveridge,  13  Barb.  372;  Jennings  v.  Gage,  13  111.  611; 


DISTINCTION   BETWEEN    THEFT   AND   TKESPASS.  ISO 

§  334.  The  distinction  between  acquiring  goods  by  theft  or 
trespass,  or  by  fraudulent  purchase.  Where  goods  are  acquired 
by  theft  or  rohhery,  the  taker,  as  we  have  seen,  acquires  no 
title  and  can  convey  none,  but  where  goods  are  bought,  and 
the  vendor  of  his  own  act  delivers  them  to  the  purchaser  with 
bill  of  sale  or  other  evidences  of  ownership,  no  matter  what 
fraudulent  practices  have  induced  the  sale  and  delivery,  the 
purchaser  takes  a  title,  voidable  it  is  true,  at  the  pleasure  of 
the  defrauded  vendor,  but  until  declared  void  by  him,  it  is 
perfectly  good  as  against  all  others.  If,  therefore,  while  the 
pi'operty  is  so  in  the  hands  of  the  purchaser,  and  before  the 
original  owner  knows  of  or  has  time  to  rescind  the  sale,  the 
goods  are  sold  and  delivered  to  an  innocent  third  party  who 
pays  full  value  for  them,  the  latter  is  not  regarded  as  a  wrong- 
ful taker  or  detainer,  and  the  cuiTent  ol  authorities  is  that  as 
against  him,  replevin  will  not  lie.^ 

§  385.  The  same.  Observations  upon  this  rule.  There  have 
been  decisions  which  hold,  that  he  who  purchases  from  one 
who  acquired  possession  of  the  goods  by  fraudulent  purchase 
from  the  owner,  is  in  all  respects  treated  as  a  trespasser;  that 
he  cannot  avail  himself  of  the  conveyance  to  justify  or  excuse 
the  taking. 2  In  Saltus  v.  Everett,  20  AVend.  275,  Senator 
Yerplank  said:  "An  honest  purchaser  under  a  delective 
title  cannot  hold  against  the  true  owner."  There  is  no 
general  principle  of  law  or  equity  that  the  right  of  a  hona 

Ohio  &  Miss.  R  R.  Co.  v.  Kerr,  49  111.  4.j8;  Powell!  v.  Bradlee,  9  Gill.  &  J. 
(:\Id.)  220;  Slmfeklt  v.  Pease,  16  Wis.  Go9.  Bona  fide  purchaser  holds. 
Butters  v.  Haughwout,  42  111.  18;  Kranert  v.  Simon,  65  111.  344;  Brundage 
V.  Camp,  21  111.  3o0;  Burtoa  v.  Curyea,  40  111.  320;  Powell  v.  Bradlee,  9 
Gill.  &  J.  (Md.)  220;  Patton  v.  Campbell,  70  111.  72. 

1  Saltus  v.  Everett,  20  Wend.  267,  Sargent  v.  Sturm,  23  Cal.  362;  Covill 
V.  Hill.  4  Denio,  323;  Johnson  v.  Peck,  1  Woodbury  &  M.  C.  C.  334,  Inger- 
soll  0.  Emmerson,  1  Carter,  (Ind.)  77;  Nash  v.  Mosher,  19  Wend.  433;  Hyde 
«.  Noble,  13  N.  H.  494;  Hurst  u.  Gwennap,  2  Starkle,  306;  Root  v.  French, 
13  Wend.  570 ;  Mowrey  v.  Walsh,  8  Cow.  238 ;  Neal  v.  Williams,  \S  Jle.  391 ; 
Farley  ©.  Lincoln,  51  N.  H.  576;  Cobb  v.  Dows,  10  N.  Y.  339;  Williams  v. 
Merle,  11  Wend.  80;  Covill  v.  Hill,  4  Denio,  323;  Deshon  v.  Bigelow,  8 
Gray,  (Mass.)  159. 

"  McKnight  v.  Morgan,  3  Barb.  171;  Galvin  v.  Bacon,  11  Me.  28;  Lee  v. 
Portwood,  41  Miss.  109. 


190  TAKING  BY  THEFT,  FOKCE  OR  FRAUD. 

fide  purchaser  shall  be  regarded  as  superior  to  the  prior  right 
of  the  legal  owner.  To  say  that  of  two  innocent  men,  he 
should  suffer  most  who  trusts  most,  would  authorize  anyone 
to  purchase  from  a  fraudulent  bailee  if  this  rule  be  taken  in 
the  generally  received  acceptation  of  the  doctrine.  But  does 
he  trust  more  who  delivers  possession  of  his  goods  to  a  bailee 
when  the  goods  themselves  are  easily  identilied,  or  he  who 
parts  with  his  money  for  goods  upon  the  simple  fact  that  the 
vendor  has  possession  of  them.  The  rule  should  be,  that  as 
between  two  equally  innocent  men,  his  right  should  prevail 
which  is  prior  in  point  of  time.^  He  who  has  been  led  to 
part  with  his  goods  by  fraud  has  not  committed  a  fault,  but 
suffered  a  misfortune. 

§  336.  The  same.  The  same  question  was  presented  in  Ar- 
kansas, where  it  was  said:  "It  has  been  contended  that  the 
owner  has  consented  to  the  taking;  and  if  that  were  so,  it 
would  be  a  sufficient  reply  in  replevin,  at  least  for  taking.  In  an 
action  against  an  innocent  purchaser  of  chattels  without  notice, 
and  wdth  no  agency  in  the  trespass,  we  can  find  no  authority 
which  would  authorizs  a  recovery  in  an  action  of  trespass,  and 
therefore  conclude  that  replevin  for  an  unlawful  taking  is  not 
supported  by  such  proof."^  Notwithstanding  the  preceding 
cases  to  the  contrary,  the  rule  is  supported  by  a  large  prepon- 
derance of  the  authorities  that,  as  against  an  innocent  pur- 
chaser of  a  chattel  from  a  fraudulent  purchaser,  without  notice 
of  any  adverse  claim,  and  with  no  agency  in  the  fraud  by 
which  they  were  obtained,  there  is  no  authority  to  authorize  a 
recovery. 3  The  loss  must  fall  on  him  who  was  foolish  enough 
to  part  with  his  goods  before  he  had  security.'* 

»  Ash  «.  Putnam,  1  Hill,  302. 

5  Trapnall  v.  Hattier,  1  Eag.  (Ark.)  23. 

3  Harrison  v.  M'lutosh,  1  Johns.  384;  Ditson  v.  Randall,  33  Me.  202; 
Bristol  V.  Wilsmore,  1  Bar.  &  C.  515;  Kilby  v.  Wilson,  Ry.  &  Moody,  (N. 
P.)  178-181. 

4  Jennings  t.  Gage,  13  HI.  610 ;  Harris  o.  Smith,  3  S.  &  R.  (Pa.)  21 ;  Brund- 
age  n.  Camp,  21  HI.  331;  Powell  v.  Bradlee,  9  Gill  &  J.  (Md.)  220;  Butters 
«.  Hougliwout,  42  HI.  18;  Burton  ■».  Curyea,  40  HI.  320;  Areudale  v.  Mor- 
gan, 5  Sneed,  (Tenn.)  704;  Malcom  t.  Loveridge,  13  Barb.  372;  Keyser  v. 
Harbeck,  3  Duer,  373;  Williams  v.  Given,  6  Gratt.  268;  Jennings  v.  Gage, 


PAYMENT   OF   PKE- EXISTING   DEBT.  191 

§  337.  The  same.  A  contract  originating  in  fraad  may  be 
rescinded  at  the  option  of  the  injured  party,  and  the  seller  may 
reclaim  the  goods,  provided  the  rights  of  a  third  party,  as  a 
hona  Jide  purchaser,  have  not  intervened.  But  the  right  of 
the  seller  to  rescind  exists  only  so  long  as  the  goods  are  in  the 
hands  of  the  fraudulent  purchaser.  Until  the  seller  has  made 
use  of  his  option  to  rescind  the  sale,  the  purchaser,  no  matter 
what  fraud  has  been  practiced,  takes  a  title  which  may  or  may 
not  be  ratified  by  the  vendor;  and  if,  while  so  holding,  he 
sells  to  a  bona  fide  purchaser  for  value,  it  will  pass  title.  ^  In 
Chicago  Dock  Co.  v,  Foster,  48  111.  507,  the  court  lays  down 
the  law  without  qualification,  that  an  innocent  purchaser  for 
value,  from  one  who  has  fraudulently  obtained  the  goods  from 
the  owner,  will  be  protected  in  replevin  by  the  original  owner. 
Where  certain  warrants  against  the  State  of  California  were 
paid  into  the  State  treasury,  and  afterwards  stolen,  and  sold  by 
the  thief  to  an  innocent  holder,  who  again  presented  them  to 
the  State  officer,  who,  in  ignorance  of  the  fact  that  they  had 
once  been  paid,  issued  other  bonds  for  them,  the  State  was 
held  liable  on  the  bonds  so  issued,  and  in  an  action  in  the 
nature  of  detinet,  by  the  State,  recovery  was  denied. ^ 

§  338.  Rule,  where  goods  fraudulently  purchased  are  taken 
in  payment  of  a  pre-existing  debt.  But  where  goods  obtained 
by  fraud  are  used  in  payment  of  a  pre-existing  debt  of  the 
wrongdoer, 3  or  where  they  have  been  mortgaged  or  pledged, 
or  assigned  to  trustees  to  pay  the  debts  of  the  fraudulent  pur- 
chaser, the  owner  may  pursue  and  recover,  as  a  purchaser  for 
a  pre-existing  debt,  or  a  pledgee  or  mortgagee  is  not  regarded 
in  the  same  light  as  a  purchaser  for  value ;^  and  the  same  rule 

13  111.  610;  Caldwell  v.  BarUett,  3  Duer.  341;  Smith  v.  Lynes,  1  Seld.  41; 
Kingsford  v.  Merry,  34  E.  L.  &  Eq.  607. 

•  Meers  v.  Wnples,  3  lloust.  (Del.)  581 ;  Hoffman  v.  Noble,  6  Met.  75 ;  Root 
v.  French,  13  Wend.  570;  Smith  v.  Lynes,  1  Seld.  (N.  Y.)  47. 

2  State  of  California  v.  Wells,  Fargo  &  Co..  15  Cal.  340. 

3  Sargent  v.  Sturm,  23  Cal.  360;  Root  v.  French,  13  Wend.  570;  Codding- 
ton  V.  Bay,  20  Johns.  637;  Butters  v.  Haughwout,  42  111.  18;  Durell  v. 
Haley,  1  Paige,  492. 

''Parker  v.  Patrick,  5  D.  &  E.  102,  175;  Somes  v.  Brewer,  2  Pick.  184; 
Rowley  v.  Bigelow,  12  Pick.  307 ;  Lloyd  e.  Brewster,  4  Paige,  537. 


193  TAKING  BY  THEFT,  FORCE  OR  FRAUD. 

applies  where  goods  so  obtained  are  seized  on  legal  process  by 
a  creditor  of  the  fraudulent  purchaser ;i  one  of  the  reasons 
being,  that  the  onlj  consideration  in  these  latter  cases  is  the 
extino'uishment  of  a  debt  which  can  be' revived  by  setting  aside 
or  rescinding  the  transfer;  and  in  such  case  the  party  is  no 
worse  tlian  he  was  before.  He  is  not  in  the  situation  of  one 
who  has  parted  with  his  money. ^ 

§  339.  Sale  of  goods  upon  condition.  Sales  upon  condition, 
exjjress  or  implied,  as  to  delivery,  payment  or  security,  are  of 
daily  occurrence.  These  conditions  are  sometimes  broken  by 
accident  or  design,  and  the  effect  of  the  breach  is  a  question 
which  frequently  demands  adjustment  in  the  action  of  rejtlevin. 

§  340.  Non-payment  for  goods  sold  on  credit  does  not  war- 
rant a  resoision  of  the  contract.  In  the  absence  of  fraud  or  de- 
ceit on  the  part  of  the  purchaser,  simple  non-payment  for 
goods  bought  on  credit  is  not  sufficient  to  warrant  a  rescision 
of  the  contract.  The  vendor  has  parted  with  his  goods  under 
a  full  knowledge  of  all  the  facts,  and  the  neglect  of  the  pur- 
chaser to  pay  the  stipulated  price  is  one  of  the  contingencies 
which  he  is  presumed  to  have  estimated,  and  in  the  absence 
of  fraud,  or  the  reservation  ot  a  special  lien,  the  seller  cannot 
recover  his  goods. ^ 

§  341.  Bule  where  the  vendor  stipulates  to  retain  title  or 
possession  until  payment.  Where,  however,  the  vendor  stip- 
ulates to  retain  possession  until  the  purchase  price  is  paid,  he 
may  sustain  replevin  against  anyone  who  wrongfully  takes  or 
detains  the  goods  from  his  possession  in  violation  of  the  con- 
ditions of  the  sale.*  When  the  plaintiffs  sold  and  delivered 
a  safe,  with  the  express  agreement  that  it  should  remain  their 
property  until  paid  for,  and  the  purchaser  made  no  payments, 
l3ut  the  safe  was  levied  on  under  execution  and  sold,  the  plain- 
tiffs were  regarded  as  the  owners  and  permitted  to  sustain 

»  Durell  v.  Haley,  1  Paige,  492;  Adams  v.  Smith,  5  Cow.  2S0;  Wigsin  v. 
Day,  '.)  Gray,  (Mass.)  97. 

'  Farley  v.  Lincola.  51  N.  H.  577. 

8  McNail  V.  Zicgler.  68  111.  224. 

*  Wills  V.  Banister,  36  Vt.  220;  Jessop  v.  Miller,  1  Keyes,  (K  Y.)  321. 


WAIVER    OF   CONDITIONS    OF   SALE.  193 

replevin;'  and  the  rule  is  tolerably  well  established,  that  in 
such  case  sale  by  the  conditional  vendee  to  an  innocent  pur- 
chaser for  value,  would  not  debar  the  owner  from  pursuing 
and  receiving  his  goods.  The  rule  is,  that  when  the  vendor 
retains  title,  the  vendee  takes  none,  and,  of  course,  can  convey 
none  by  any  sale  he  may  make.  2 

§  342.  The  same.  Illustrations.  Goods  were  sold  at  auc- 
tion, to  be  paid  for  by  note  of  a  third  party,  at  six  months, 
after  the  goods  were  delivered,  but  before  the  condition  had 
been  complied  with,  they  were  seized  on  attachment  by  credi- 
tors of  the  buyer.  The  seller  was  allowed  to  sustain  replevin. 
The  delivery  was  not  regarded  as  a  waiter  of  the  condition  in 
this  case. 3 

§  343.  Waiver  of  conditions  of  sale.  Goods  sold  on  con- 
dition and  delivered  without  insisting  on  the  condition,  held^ 
prima  facie  a  waiver  of  the  condition,  liable  to  be  explained 
or  rebutted  by  proof.*  A  firm  in  Omaha,  bought  cigars  in 
New  York,  for  which  they  were  to  give  their  note  at  four 
months.  Before  the  goods  arrived  the  purchaser  went  into 
bankruptcy;  some  days  thereafter  the  expressman  brought  the 
goods  to  the  store  of  the  buj^er,  and  the  U.  S.  Marshal  then 
in  possession  took  them,  the  vendors  were  permitted  to  sustain 
replevin.  The  condition  of  the  sale  had  not  been  complied 
with,  the  note  of  the  purchaser  had  not  been  given,  and  the 
contract  impliedly  required  the  note  of  the  defendants  when 

'  Bradsbaw  T.Warner,  54  Ind.  58;  Hodsonc.  Warner,  60  Ind.  214;  Leven 
V.  Smith,  1  Denio,  571;  Jennings  v.  Gage,  13  111.  610;  Harris  xi.  Smith,  3 
S.  &  R.  (Pa.)  21 ;  Tully  v.  Fairly,  51  Ind.  311. 

*  Deshon  v.  Bigelow,  8  Gray,  159;  Hotchkiss  v.  Hunt,  49  Me.  213;  Rowe 
V.  Sharp,  51  Pa.  St.  27;  Coghill  v.  Hartford  &  N.  H.  R.  R..  3  Gray,  545; 
Sargent  v.  Metcalf,  5  Gray,  306;  Burbank  v.  Crooker,  7  Gray,  158;  Holmark 
v.  Molin,  5  Cold.  (Tenn.)  482;  Eaton  t.  Munroe,  52  Me.  63;  Meldrum  v. 
Snow,  9  Pick.  441. 

»  Hill  V.  Freeman,  3  Cush.  257;  Keeler  p.  Field,  1  Paige,  (Ch.)  312;  Hus- 
sey  V.  Thornton,  4  Mass.  405;  Marston  v.  Baldwin,  17  Mass.  606;  Smith  v. 
Dennie,  6  Pick.  262 ;  Copland  v.  Bosquet,  4  Wash.  C.  C.  588 ;  Harris  v. 
Smith,  3  S.  &  R.  (Pa.)  20. 

*  Pitt  V.  Owen,  9  Wis.  152;  Lupin  75.  Marie,  6  Wend.  77;  Smith  v.  Lynes, 
1  Seld.  43;  Kinsey  v.  Leggett,  71  K  Y.  387;  Ives  v.  Humphreys,  1  E.  D. 
Smith,  196;  Leven  0.  Smith,  1  Denio,  571. 

13 


19i  TAKING   BY    THEFT,    FORCE   OB   FRAUD. 

solvent,  not  bankrupt.^  "Where  goods  are  sold  for  casli  on 
delivery,  and  the  proof  tends  to  show  a  usage  or  custom  of 
delivering  the  goods  without  demanding  instant  payment,  and 
goods  so  sold  are  actually  delivered  without  payment  at  the 
time  of  delivery,  the  court  may  leave  it  to  the  jury  to  deter- 
mine  whether  the  delivery  was  made  in  reference  to  the  usage, 
and  no  waiver  of  the  cash  payment,  or  whether  the  delivery 
was  unconditional.  If  the  delivery  was  with  reference  to  the 
usage,  and  without  intention  to  pass  title,  replevin  will  lie.^ 
From  these  and  kindred  cases  the  general  rule  may  be  gath- 
ered, that  a  sale  of  goods  upon  condition  does  not  vest  the 
title  in  the  purchaser  until  the  condition  shall  have  been 
complied  with.  That  in  the  keeping  ol  conditions  even  where 
they  are  express,  some  latitude  is  allowed,  and  the  seller  does 
not  forfeit  his  right  by  reasonable  confidence  in  the  integrity 
of  the  purchaser  and  his  ability  to  keep  his  contract;  and  if 
in  such  case  the  buyer  refuse  to  perform  the  conditions,  the 
seller  may  rescind  the  bargain  and  retake  his  goods.  If,  how- 
ever, the  seller  do  any  act  amounting  to  a  waiver  of  the  con- 
ditions, he  forfeits  his  right  to  pursue  his  goods. 

»  Sutro  V.  Hoile,  3  Neb.  190.    See  Farley  v.  Lincoln,  51  N.  H.  57D. 
•  Powell  V.  Bardlee,  9  Gill.  &  J.  (Md.)  220. 


THE   DEMAND. 


195 


CHAPTEE   XIII. 


THE  DEMAND. 


Section 

General  principles  of  the  law 
requiring  it     . 

Demand  not  necessary  when 
defendant's  possession  is 
wrongful;  otherwise  it  is 
necessary         .... 

The  reasons  for  the  rule    . 

The  same 

Proof  of  a  wrongful  taking  suf- 
ficient       

The  legal  effect  of  a  demand 
and  refusal      .... 

Where  possession  is  taken  by  a 
thief  or  trespasser  from  an- 
other thief  or  trespasser 

"Where  goods  are  converted  no 
demand  necessary;  meaning 
of  the  term  "  conversion  "  as 
here  used        .... 

What  is  a  conversion 

There  can  be  no  conversion 
without  control  over,  or  inter- 
ference with  the  property 

Illustrations  of  this  rule    . 

The  same 

Purchaser  at  sheriff's  sale 

Possession  taken  simply  as  an 
act  of  charity,  or  to  preserve 
property,  not  conversion 

Borrower  cannot  set  up  title  in 
himself  as  against  his  bailor  358 

Finder  of  property  entitled  to  a 
demand 359 

The  taker-up  of  stray  animals  .  360 


344 


345 
346 
347 

348 

349 


50 


351 
353 


353 
354 
355 
356 


357 


Section. 

Purchaser  of  property  payable 
in  installments  entitled  to  a 
demand  before  forfeiture 

Unauthorized  interference  with 
the  goods  of  another 

One  who  hires  property  for  a 
special  purpose  cannot  use  it 
for  another      .... 

Innocent  receiver  of  stolen  goods 
may  be  liable  for  conversion 

What  is  rightful  possession 

Fraudulent  purchaser,  or  attach- 
ing  creditor  of  same,  not  en- 
titled to  demand 

A  fraudulent  taking  confers  no 
right  on  the  taker   . 

Demand  necessary  where  an  of- 
ficer seizes  goods  from  defend- 
ant named  in  his  process 

Contra;  when  he  seizes  goods 
from  another  .... 

Innkeeper  or  carrier;  when  en- 
titled to  a  demand  . 

What  time  demand  must  be  made 

The  effect  of  failure  to  prove 
demand 

Waiver  of  demand  by  defendant  373 

The  same.  Claim  of  ownership 
by  defendant   .... 

Upon  whom  the  demand  must 
be  made 

No  particular  form  necessary   . 

General  rules  governinj?  ♦he  i*^ 
mand      ....  Til 


361 


362 


363 

364 
365 


366 


367 


368 
369 

370 

371 

373 


374 

375 
376 


196  THE    DEMAND. 


The  same.    Illustrations    .        .  378 
Demand  by  father  or  guardian  379 
Refusal  to  deliver;  true  grounds 
therefor  must  be  stated  .        .  380 


The  same.     What  is  a  sufficient 

excuse  for  non-delivery  .  .  381 
The  same  .  .  .  .  .383 
The  same 383 


§  344.     Demand ;  general  principles  of  the  law  requiring  it. 

There  are  many  cases  where  it  is  necessary,  before  commencing 
suit,  to  make  a  demand  upon  the  defendant  for  the  delivery  of 
the  property,  and  the  question  whether  such  demand  is  neces- 
sary or  not  ouglit  always  to  be  fully  considered.  The  eflPect  of 
a  failure  to  make  and  prove  a  demand  in  cases  where  the  de- 
fendant is  entitled  to  it,  may  be  to  lose  an  otherwise  good  case. 
The  fact  that  the  defendant  has  the  possession  of  goods  raises 
no  presumption  that  he  came  wrongfully  by  them,  nor  does  it 
raise  any  inference  that  he  will  detain  them  against  the  own- 
er's demand.  1  The  primary  object  of  a  demand,  independent 
of  the  legal  rights  of  tlie  other  i)arty,  is  to  obtain  the  goods 
without  suit,  and  it  should  be  made  in  all  cases  where  there  is 
a  reasonable  belief  that  it  will  result  in  a  delivery  of  the  goods, 
with  tew  probabilities  that  their  possessor  will  remove  or  secrete 
them.  A  demand  is  necessary  in  many  cases  to  aiford  the 
defendant  an  opportunity  to  restore  the  goods  to  the  rightful 
owner,  or  to  make  satisfaction  if  he  desires  to  do  so.  In  all 
cases  where  a  party  is  in  the  rightful  possession  of  the  goods 
of  another  the  law  presumes  that  he  will  at  once  deliver  them 
to  tlie  owner  on  request;  and  this  presumption  is  so  strong 
that  it  will  not  allow  such  possessor  to  be  put  to  the  expense 
of  defending  a  suit  until  the  opportunity  has  been  offered  him 
to  save  costs  and  avoid  litigation  by  a  surrender,'' 

§  345.  Demand  not  necessary  when  the  defendant's  pos- 
session is  wrongful;  otherwise  it  is  necessary.  The  general 
rule  may  be  stated  that  when  the  defendant's  possession  has 
been  acquij*ed  through  force  or  fraud,  or  though  rightful  in  its 
inception,  the  defendant  has  subsequently  done  any  act  amount- 
ing to  a  conversion  of  the  property  to  his  own  use,  or  intended 

'  Amos  V.  Sinnott,  4  Scam.  441. 

2  Thompson  1).  Shirley,  1  Esp.  N.  P.  C.  31 ;  Stanchflcld  v.  Palmer,  4  Greene, 
(Iowa.)  24;  Homan  v.  Laboo,  1  Neb.  208;  Pringle  v.  Phillips,  5  Saudf.  (N. 
y.)  157. 


NOT   NECESSARY    WHEN    POSSESSION   IS   WRONGFUL.  197 

to  deprive  the  rif^htful  owner  of  his  goods,  demand  is  not 
necessary,  1  But  wliere  the  defendant's  possession  was  ri;]jht- 
fullj  acquired,  and  where  he  has  been  gnilty  of  no  wrongful 
act  towards  the  plaintiff's  rights,  a  demand  is  usually  neces- 
sary before  suit  can  be  sustained. ^  Thus,  where  the  defend- 
ant acquires  possession  by  means  of  a  lease  from  the  owner, 
he  is  entitled  to  a  demand  before  being  subjected  to  a  suit. 
Ordinarily  this  is  the  case  after  the  lease  has  exj^ired.^  But 
a  servant  who  quits  his  master,  taking  with  him  his  master's 
goods,  is  liable  without  demand.*  And  where  a  machine  was 
delivered  to  one  through  mistake  of  an  expressman,  and  lie 
encouraged  the  delivery  and  afterwards  made  repairs  upon 

'  Bussing  V.  Rice,  2  Cusli.  48;  Tiiurston  v.  Blanchard,  22  Pick.  18;  Ayres 
D.  Hewett,  19  Me.  281 ;  Foshay  v.  Ferguson,  5  Hill,  158;  Stilhnan  v.  Squire, 
1  Denio,  328;  Cummings  ».  Vorce,  3  Hill,  282;  Pierce  c.  Van  Dyke,  6  Hill, 
613;  Trudo  B.Anderson,  10  Mich.  358;  Ballou  v.  O'Brien,  20  Mich.  304; 
Le  Roy«.  East  Sag.  R.  R.,  18  Mich.  239;  Clark  v.  Lewis,  35  111.  417;  Bruner 
V.  Dyball,  42  111.  3(3;  Gibbs  v.  Jones,  46  111.  320;  Seaver  c.  Dingley,  4  Green, 
(Me.)  314;  Griswold  v.  Bdey,  1  Blake,  (Montana,)  546;  Hicks  v.  Britt,  21 
Ark.  422;  Farrington  v.  Payne,  15  Johns.  432;  White  v.  Brown,  5  Lans.  78; 
Connah  v.  Hale,  23  Wend.  462;  Bates  v.  Conkling,  10  Wend.  390;  Lewis  v. 
Masters,  8  Blackf.  246 ;  Dehncey  v.  Holcomb,  2G  Iowa,  96 ;  Smith  v.  McLean, 
24  Iowa,  322;  Stanchfield  v.  Palmer,  4  Greene,  (Iowa,)  25;  Lawson  v  Lay, 
24  Ala.  188;  Giirdner  t\  Boothe,  31  Ala.  190;  Oleson  v.  Merrill,  20  Wis.  462; 
Whitney®.  McConnell,  29  Mich.  13;  Gilmore  v.  Newton,  9  Allen,  171; 
Stanly  v.  Gaylord,  1  Gush.  549;  Riley  v.  Boston  Water  P.  Co.,  11  Cush.  11 ; 
Henry  v.  Fine,  23  Ark.  419;  Courtis  v.  Cane,  32  Vt.  232;  Boise  v.  Knox,  10 
Met.  41;  Fernald  v.  Chase,  37  Me.  292;  Parsons  v.  AVebb.  8  Me.  39;  Bald- 
win  V.  Cole,  6  Mod.  212;  Partridge  v.  Swazey,  46  Me.  414. 

«  Brown  v.  Cook,  9  Johns.  361;  Boughton  v.  Bruce.  20  Wend.  234;  Pierce 
r.  Van  Dyke,  6  Hill,  613;  Stanchfield  v.  Palmer,  4  Greene,  (Iowa,)  25; 
Smith  V.  McLean,  24  Iowa,  323;  Gilciirist  v.  Moore,  7  Iowa,  11 ;  Sluj'ter  v. 
Williams,!  Swcncy,  (N.  Y.)  215;  Stapleford  t;.  White,  1  Houston,  (Del.) 
238 ;  Windsor  o.  Boyce.  1  Houst,  (Del.)  605 ;  Johnson  v.  Johnson,  4  Har.  (Del.) 
171;  Sopris  B.  Truax,  1  Colorado,  90;  Roach  v.  Binder,  1  Colorado,  322; 
Newman  v.  Jenne,  47  Me.  520;  Seaver  v.  Dingley,  4  Green.  (Me.)  307; 
Pirani  v.  Barden,  (5  Ark.)  Pike,  81;  Burr  v.  Daugherty,  21  Ark.  564;  Hud- 
son V.  Maze,  3  Scam.  582;  Ingalls  v.  Bulkley,  13  111.  317;  Smith  v.  Welch, 
10  Wis.  91 ;  Stratton  v.  Allen,  7  Minn.  502;  Root  v.  Bonnema,  22  Wis.  539; 
Walpolc  1).  Smith,  4  Blackf.  306;  Litterel  v.  St.  John,  lb.  327;  Conner  v. 
Comstock,  17  Harrison,  (Ind.)  90;  Bond  v.  Ward,  7  Mass.  127;  Sawyer  v. 
Merrill,  6  Pick.  478;  0.  &  M.  R  y  Co.  v.  Noe,77  Ills.  512. 

3  White  V.  Brown,  5  Lans.  (N.  Y.)  78. 

*  Pilsbury  v.  Webb,  33  Barb.  214. 


19S  THE    DEMAND. 

it,  the  taking  was  wrongful  and  no  demand  was  neces- 
sary. ^  Or  where  one  acquire  possession  of  property,  and 
without  learal  rig-ht  assert  a  claim  inconsistent  with  the  owner's 
rights,  the  possession  from  that  moment  is  wrongful,  and  no 
demand  is  necessary. 2 

§  346.  The  reasons  for  the  rule.  The  reasons  for  this  gen- 
eral rule  are  plain.  If  the  original  taking  was  lawful,  then 
the  possession  under  that  taking  must  be  rightful  until  some 
other  person  with  a  better  right  has  asserted  his  claim  by  ask- 
ing that  the  goods  be  delivered  to  him.  The  law  presumes 
that  the  defendant  who  rightfully  acquired  possession  will 
respect  the  rights  of  the  true  owner  on  being  informed  of 
them,  and  deliver  the  possession  at  once  on  request.  At  least 
he  must  have  an  opportunity  to  do  so  before  he  is  put  to  cost 
of  a  suit.  If,  however,  he  refuses  to  comply  with  the  demand, 
or  if,  after  knowledge  of  the  plaintiff's  right,  he  does  any  act 
which  amounts  to  a  conversion  of  the  property  to  his  own  use, 
his  possession  from  that  moment  becomes  wrongful  as  against 
the  true  owner. ^  Again,  where  the  defendant's  possession  was 
rio'htfully  acquired,  his  subsequent  possession  continues  to  be 
rio-htful  until  he  shall  have  done  some  act  inconsistent  with 
the  owner's  rights;  and  while  his  possession  so  continues  to 
be  rightful  no  action  which  requires  for  its  support  proof  of 
a  wrongful  detention,  can  lie;  so  when  a  demand  is  required 
the  defendant's  possession  continues  to  be  rightful  up  to  the 
time  of  demand,  and  until  he  can  have  a  reasonable  opportu- 
nity to  comply  with  it.  Therefore,  when  a  demand  is  neces- 
sary, it  must  be  made  before  the  suit  is  begun.* 

§  347.  The  same.  So  careful  is  the  law  of  the  rights  of 
innocent  holders,  that  in  many  cases  it  will  not  permit  the 
owner  to  recover  liis  property  even  when  wrongfully  taken 
from  him,  until  after   he  shall   have  made   demand  for  it. 

I  Purvis  V.  Moltz,  5  Robts.  (N.  Y.)  653. 

*  Shoemaker  v.  Simpson,  16  Kan.  43.      ^ 

3  Pringle  v.  Pliillips,  5  Sandf.  (N.  Y.)  161;  Woodward  v.  Woodward,  14 
111.  466;  Poole  v.  Adkissoa,  1  Dana,  (Ky.)  110;  Hosmertj.  Clarke,  2  Green, 
(^le.)  308. 

*  Brown  v.  Holmes,  13  Kan.  483;  Windsor  v.  Boyce,  1  Houst.  (Del.)  605$ 
Alden  v.  Carver,  13  Iowa,  255. 


PROOF   OF   WRONGFUL   TAKING   SUFFICIENT.  199 

Tims,  when  the  owner  of  a  chattel  wrongfully  taken  from  him 
finds  it  in  the  possession  of  one  who  acquired  it  in  good  faith, 
by  purchase,  and  in  ignorance  of  the  owner's  right,  a  demand 
is  necessary  before  bringing  the  action. ^  But  this  rule  does 
not  applj'  to  stolen  goods,  nor  can  it  be  said  to  be  the  law  in 
all  the  States.  2 

§  348.  Proof  of  a  wrongful  taking  sufficient.  While  the 
foregoing  is  perhaps  accurate  as  a  general  statement,  yet  the 
decisions  vary  so  widely  in  the  different  States,  that  statement 
of  a  rule  applicable  to  all  cases  is  impossible.  General  prin- 
ciples, however,  can  be  stated,  which  it  is  hoped  will  be  a 
sufhcient  guide.  The  difference  between  the  action  for  the 
wrongful  taking,  i,  e.,  in  the  eepii,  and  for  the  wrongful 
detention,  i.  e.,  in  the  detinet,  has  been  stated. ^  When  the 
action  is  for  a  wrongful  taking,  proof  of  an  actual  or  con- 
structive wrongful  taking  by  the  defendant  will  be  sufficient, 
without  proof  of  a  demand.  This  rule  also  holds  when  the 
form  of  the  action  is  for  the  detention.  The  plaintiff  may 
if  he  so  elect,  sue  in  the  latter  form  of  action,  when  his  goods 
have  been  wrested  from  him,  and  may  sustain  his  action 
without  proof  of  a  demand,  proof  of  the  wrongful  taking 
being  sufficient,*  as  the  law  will  presume  from  proof  of  a 
wrongful  taking,  that  the  goods  continue  in  the  taker's  pos- 
session, and  that  he  remains  of  the  same  purpose  of  mind  in 
which  he  committed  the  wrong. 5  But  such  proof  is  not 
admissable  for  the  purpose  of  affecting  the  question  of  dam- 
ages. * 

>  Stanchfiold  v.  Palmer,  4  Gr.  (Iowa,)  34;  Wood  v.  Cohen,  6  Ind.  455; 
Ingalls  V.  Bnlkley,  13  111.  315. 

"  Compare  Lewis  v.  Masters,  8  Blackf.  245;  Riley  v.  Boston  Water  P.  Co., 
11  Cush.  11;  Coartis  v.  Cane,  32  Vt.  233;  Harding  v.  Coburn,  13  Met.  342; 
Hoare  v.  Parker,  2  T.  R.  376;  Hudson  v.  Maze,  3  Scam.  582;  Kelsey  v.  Gris- 
wold,  6  Barb.  440;  Hall  v.  Robinson,  3  Comst.  (N.  Y.)  2y5. 

^  See  ante,  §  53. 

*  Stillman  v.  Squire,  1  Denio,  333;  Oleson  «.  Merrill,  20  Wis.  403;  Cura- 
miugs  V.  Vorco,  3  Hill,  282;  Lewis  v.  Masters,  8  Blackf.  245;  Pierce  v.  Van 
Dyke.  6  Hill,  613;  Zachrissau  v.  Ahraan,  2  Suudf.  68;  Pringle  v.  Phillips, 
5  Sandf.  157. 

»  Paul  V.  Luttrell,  1  Col.  320. 

«  Eldred  v.  The  Oconto  Co..  30  Wis.  208. 


200  THE   DEMAND. 

§  349.  The  legal  effect  of  a  demand  and  refusal.  A  demand 
and  refusal  is  not  a  conversion,  nor  does  it  produce  a  conver- 
sion. ^  The  refusal  is  interpreted  by  the  law  as  a  declaration 
on  the  part  of  the  person  refusing,  that  he  intends  to  make 
use  of  the  property  for  his  own  benefit,  and  for  this  the  law 
will  hold  hira  responsible  as  for  an  actual  conversion.  Proof 
of  an  actual  conversion  will  always  obviate  the  necessity  of 
proving  a  demand  and  refusal. 2  When,  therefore,  the  defend- 
ant has  notice  of  the  plaintiff's  rights,  any  act  done  for  the 
purpose  of  defeating  them,  will  amount  to  a  conversion;  but 
where  the  defendant  acts  in  ignorance  of  the  claim  of  any 
other  person  and  in  the  honest  belief  that  the  goods  are  his, 
an  actual  conversion,  or  a  demand  and  refusal  must  be  proved 
before  the  plaintiff  can  sustain  an  action.  Kennet  v.  RobiU' 
son,  2  J.  J.  Marsh,  (Ky.)  84,  is  one  of  the  most  interesting 
cases  on  the  question  of  "  what  is  a  conversion,"  that  is  to  be 
met  with.  The  court  there  holds  in  substance,  that  to  consti- 
tute conversion  there  must  be  a  taking  without  the  owner's 
consent,  or  an  assumption  of  ownership,  or  an  illegal  use  or 
abuse  of  the  property,  and  that  in  the  absence  of  such  proof, 
there  must  be  proof  of  a  demand  and  refusal  to  deliver. 

§  350.  Where  possession  is  taken  by  a  thief  or  trespasser 
from  another  thief  or  trespasser.  If  goods  be  taken  by  a 
thief  or  trespasser  from  another  thief  or  trespasser,  the  owner 
may  have  trespass  or  replevin  against  the  last  taker  without 
demand. 3 

§  351.  Where  goods  are  converted  no  demand  necessary; 
meaning  of  the  term  "  conversion  "  as  here  used.  The  term 
"conversion"  as  here  used  does  not  imply  a  change  of  con- 
dition in  the  goods,  but  simply  that  they  have  been  appropri- 
ated by  the  party  to  his  own  use.  If  one  take  corn  and 
refuse  to  deliver  it  to  the  owner  on  demand,  it  is  a  conversion. 
If  he  manufacture  whisky  from  it  and  deliver  it  on  request,  it 

'  Morris  v.  Pugh,  3  Burr.  1241 ;  Savage  v.  Perkins.  11  How.  Pr.  17;  Per- 
kins V.  Barnes,  3  Nev.  557;  Brimer  v.  Dyball,  42  111.  35;  Lockwood  v.  Bull, 
1  Cow.  822;  Hill  v.  Covell,  1  Comst.  (N.  Y.)  523;  Jessop  v.  Miller,  1  Keyes, 
(N.  Y.)  321.     Contra,  Baldwin  v.  Cole,  6  Mod.  212. 

"  Bristol  D.  Burt,  7  Johns.  257 ;  Gilmore  v.  Newton,  9  Allen,  (Mass.)  171. 

»  Barrett  ».  Warren,  3  Hill,  (N.  Y.)  348. 


NO  CONVERSION  WITHOUT  ACTUAL  CONTROL.       201 

is  no  conversion.  Proof  of  a  refusal  simply  raises  a  legal 
presumption  that  the  defendant  has  converted  the  property. 

§  352.  What  is  a  conversion.  The  question  then  presents 
itself,  what  proof,  aside  from  a  demand,  will  be  sufficient  to 
convict  the  defendant  of  a  conversion?  As  a  general  rule,  to 
render  the  defendant  guilty  of  conversion,  he  must  have  done 
some  positive  tortious  act.  ISTegligence,  or  a  mere  omission, 
is  not  usually  sufficient.  ^  When  a  carrier  loses  a  box  en- 
trusted to  him,  such  loss,  however  negligent,  does  not  amount 
to  a  conversion. 3  But  under  ordinary  circumstances,  where 
property  is  under  the  control  of  the  defendant,  a  willful  neglect 
to  deliver  on  request,  or  to  point  out  the  property,  or  act  in 
its  deliver}^,  will,  if  unexplained,  amount  to  a  conversion  and 
excuse  proof  of  a  demand. ^  One  halving  the  rig'at  to  exclu- 
sive possession  of  a  building,  in  which  another's  goods  are 
stored,  may  exclude  the  owner  of  the  goods  from  the  building, 
and  such  exclusion  will  not  necessarily  be  a  conversion  of  the 
goods  ;^  and  an  action  of  replevin  for  the  goods  would  require 
some  further  support  than  proof  of  a  refusal  to  admit  into 
the  building. 5 

§  353.  There  can  be  no  conversion  without  actual  control 
over,  or  interference  with,  the  property.  There  can  never  be 
an  actual  conversion  of  property  without  an  actual  possession 
of  it,  or  the  exercise  of  some  control  or  dominion  over  it.  A 
mere  declaration  of  ownership  by  one  not  in  possession,  or  an 
assertion  of  intention  to  take  possession,  without  any  actual 
interference  with  it,  will  not  amount  to  a  conversion. ^  A  levy 
by  an  officer  upon  goods  which  he  does  not  see,  or  in  any  way 

'Jones  V.  Allen,  1  Head.  (Tenn.)  628;  Lock  wood  v.  Bull,  1  Cow.  322. 
Consult  Gilmore  v.  Newton,  9  Allen,  171,  and  cases  cited ;  Youl  v.  Harbottle, 
Peakes  N.  P.  Cas.  49;  Presley  v.  Powers,  82  111.  12.5. 

»  Packard  v.  Getman,  4  Wend.  615;  Ross  v.  Johnson,  5  Burr.  2827;  Kirk, 
ham  V.  Hargraves,  1  Selw.  N.  P.  425;  Dwight  v.  Brewster,  1  Pick.  50,  53. 

8  Mitchell  V.  Williams,  4  Hill,  (N.  Y.)  16;  Holbrook  v.  Wight,  24  Wend. 
169. 

*  Bent  V.  Bent,  44  Vt.  631 

»  Bent  V.  Bent,  44  Vt.  634. 

«  Fernald  v.  Chase,  37  Me.  283;  Fuller  v.  Tabor,  39  Me.  521 ;  Simmons  v. 
Lettystone,  4  Exch.  442;  Rogers  v.  Huie,  2  Cal.  571;  Heald  v.  Cary,  11  Com. 
B.  993;  Presley  v.  Powers.  82  111.  125. 


202  THE   DEMAND. 

interfere  with,  is  no  conversion. i  I^either  will  a  conspiracy, 
however  atrocious,  to  take  or  destroy  property,  confer  a  right 
of  action,  unless  some  act  to  the  injury  of  the  party  be  done 
under  it.^ 

§  35i.  Illustrations  of  this  rule.  When  plaintiff's  sheep 
broke  out  of  his  lot  and  mingled  with  those  of  defendant's, 
which  M-ere  being  driven  along  the  highway,  although  the 
latter  allowed  them  to  go  with  his  sheep  to  his  lot,  where  they 
were  separated  and  driven  back  toward  the  direction  from 
whence  they  came,  i«t  was  held  no  con  version.  ^  When  cattle 
break  into  the  Held  of  another,  and  destroy  corn,  it  cannot  be 
said  that  their  owner  converted  the  corn,  because  his  cattle 
ate  it.*  When  a  horse  was  conveyed  as  security  for  a  debt, 
the  debtor  to  retain  possession,  castration  of  the  horse,  pend- 
ing the  time,  is  a  conversion,  and  the  lender  may  retake 
possession  in  replevin.  ^  So,  when  a  horse  had  been  leased  for 
a  term,  upon  an  agreement  to  divide  the  profits  of  his  ser- 
vices, and  the  lessee  permitted  it  to  be  sold  on  execution,  held 
a  conversion.* 

§  355.  The  same.  It  is  not  every  taking  that  amounts  to  a 
conversion.  A  simple  taking,  without  any  intention  to  use 
property,  or  to  injure  or  damage  it,  or  delay  or  afiTect  its  own- 
er's rights,  would  not  be  a  conversion.'^  A  trespass,  however 
gross,  is  not  necessarily  a  conversion.  Under  the  law,  gen- 
erally, in  this  country,  a  taking,  unaccompanied  by  a  detention, 
is  not  a  conversion. ^  Plaintiff  paid  the  fare  for  himself  and 
two  horses  on  a  ferryboat;  the  tierryman  told  him  to  remove 
his  horses,  he  would  not  carry  them.  Plaintiff  refused;  there- 
upon the  ferryman  removed  them,  while  plaintiff'  remained, 
and  was  carried  over.     Held,  that  it  was  not  conversion,  unless 

'  Herrou  v.  Hughes,  25  Cal.  556. 
2  Hutchins  v.  Hutcliins,  7  Hill,  (N.  Y.)  104. 
«  Van  Valkcnburgh  v.  Thayer,  57  Barb.  196. 
<  Smith  V.  A-rcher,  53  111.  244. 
«  Ripley  v.  Dolbier,  18  Me.  382. 
«  Hutchinson  v.  Bobo,  1  Bailey,  (S.  C.)  546. 
■I  Eld  ridge  v.  Adams,  54  Barb.  417. 

*  Bogan  V.  Stoutenburgh,  7  Ohio,  Pt.  2,  213;  State  v.  Jenninj^s,  14  Ohio 
St.  77;  Paul  v.  Luttrell,  1  Col.  317;  Nelson  v.  Iverson,  17  Ala.  219. 


BORROWER    CANNOT    SET    UP   TITLE.  203 

the  taking  was  with  the  intent  to  convert  to  the  taker's  use. 
Trespass  might  lie,  but  not  trover  or  replevin.^  A  neglect  or 
refusal  to  deliver  goods  which  are  not  in  the  defendant's  pos- 
session at  the  time  of  the  demand  is  not  a  conversion. ^ 

§356.  Purchaser  at  sheriff 's  sale.  A  mere  purchaser  at  a 
sheriff's  sale,  who  does  nothing  more  than  purchase,  is  not  a 
trespasser,  even  though  the  seizure  and  sale  by  the  officer  may 
have  been  wrongful,  and  the  sale  convey  no  title.  If,  upon 
such  sale,  the  sheriff  delivers  the  property  to  the  purchaser,  a 
demand  must  be  made  of  him  before  suit.^  When,  however, 
one  obtains  goods  by  trespass,  and  they  are  subsequently  sold 
by  the  officer  on  execution  against  the  trespasser,  and  bought 
by  the  plaintiff  in  execution,  a  want  of  demand  will  not  defeat 
the  suit.*  The  purchase,  in  such  case,  was  only  the  extin- 
guishment of  a  prior  debt,  and  not  a  purchase  for  cash.^ 

§  357.  Possession  taken  simply  as  an  act  of  charity,  or  to 
preserve  property,  not  a  conversion.  Where  one  takes  posses- 
sion of  property  as  an  act  of  charity  or  kindness,  or  for  the 
purpose  of  preserving  what  would  otherwise  suffer  damage,  it 
is  no  conversion.  There  is  no  wrongful  act  or  intention,  which 
is  an  essential  ino-redient  in  an  action  for  wrong-ful  taking  or 
detention.     Consequently  a  demand  must  be  made.® 

§  358.  Borrower  cannot  set  up  title  in  himself  as  against  his 
bailor.  A  borrower  or  a  bailee  for  hire,  cannot  set  up  title  in 
himself  against  his  bailor.  He  must  first  restore  the  property. 
And  while  a  demand  is  necessary  in  such  cases,  when  the 
defendant  has  done  no  act  amounting  to  a  conversion,  a  claim 
of  ownership,  in  defiance  of  the  rights  of  lender  or  hirer,  is 
equivalent  to  a  conversion,  and  renders  a  demand  unnecessary.' 

'  Fouldes  V.  Willoughby,  8  Mees.  &  W.  540 ;  Eldridge  v.  Adams,  54  Barb. 
417. 

"Whitney  v.  Slauson,  30  Barb.  276;  Hawkins  v.  HoflFman,  6  Hill,  586; 
Hall  V.  Robinson,  3  Comst.  (N.Y.)  393 ;  Hill  v.  Covell,  1  Comst.  533 ;  Walker  v. 
Fenner,  20  Ala.  198. 

8  Talinadge  v.  Scudder,  38  Pa.  St.  518. 

«  Sargent  v.  Sturm,  23  Cal.  360. 

"  See  ante,  %  383. 

*  Kcnnet  v.  Robinson,  3  J.  J.  Marsh.  (Ky.)  84. 

'  Simpson  v.  Wrcnn,  50  111.  224;  Loeschman  v.  Machin,  2  Starkie,  310. 


204:  THE   DEMAND. 

§  359.  Finder  of  property  entitled  to  a  demand.  The  finder 
of  lost  property  is  entitled  to  a  demand  before  being  subjected 
to  a  suit;  but  be  has  no  lien  for  expenses  gratuitously  bestowed 
in  taking  care  of  it;  and  if  he  assert  his  intention  to  hold  it 
for  the  purpose  of  enforcing  such  a  lien,  he  will  be  guilty  of 
conversion. '  Salvage,  as  allowed  in  the  maritime  courts^  stands 
on  an  entirely  different  basis,  and  is  enforced  only  in  respect 
to  goods  lost  on  the  high  seas.^  When  a  raft  broke  loose  from 
its  fastenings  on  the  bank  of  a  river,  and  the  defendant  towed 
it  to  a  place  of  safety,  he  was  not  permitted  to  set  up  a  lien 
for  his  trouble,  however  meritorious  his  claim. ^  Where,  how- 
ever, a  reward  is  offered  for  lost  property,  the  finder  is  entitled 
to  retain  possession  until  the  reward  is  paid.* 

§  360.  Taker  up  of  stray  animals.  The  taker  up  of  an 
estray,  who  fails  to  comply  with  tlie  law  with  respect  to  such 
animals,  has  no  lien  for  his  trouble  or  expense.  He  is,  in 
fact,  a  trespasser. 5  But  when  the  defendant  took  up  stray 
cattle,  complying  with  the  terms  of  the  statute,  he  was  entitled 
to  a  demand  of  possession  and  a  tender  of  charges  before  he 
could  be  held  liable  in  this  action. ^ 

§  361.  Purchaser  of  property  payable  in  installments  enti- 
tled to  a  demand  before  forfeiture.  Where  one  bought  a  sew- 
ing machine,  and  was  to  pay  for  it  in  monthly  installments, 
and  paid  first  installment,  and  refused  to  pay  the  next,  alleg- 
ing the  macKine  was  not  such  as  she  had  bought,  the  seller 
brought  replevin.  Held,  it  could  not  be  sustained  without 
proof  of  a  demand,  and  an  offer  to  refund  the  part  of  the 
purchase  money  which  had  been  paid.' 

§  362.  Unauthorized  interference  with  the  goods  of  another. 
A  forcible  seizure  is  not  necessary  to  constitute  a  wrongful 

'  Etter  V.  Edwards,  4  Watts.  (Pa.)  66,  citing  Binsted  v.  Buck,  3  W.  Blacks. 
1117. 

2  Hartford  v.  Jones,  1  Ld.  Raj^m.  393. 

3  Nicholas  v.  Chapman,  2  H.  Bla.  254. 
*  Cummings  v.  Gann.  52  Pa.  St.  484. 

'  Bayless  v.  Lefaivre,  37  Mo.  119. 

«  Holcorab  V.  Davis,  50  111.  416. 

■"  Hamilton  v.  Singer  Sewing  Machine  Co.,  54  111.  370. 


INNOCENT   RECEIVER   OF    STOLEN    GOODS.  205 

taking;!  i^^^^  any  unlawful  or  unauthorized  intermeddling  with 
or  exercise  of  authority  over  the  property  of  another  is  an  act 
of  trespass,  and  if  accompanied  by  taking  and  detention,  will 
amount  to  a  con  version.  2 

§  363.  One  who  hires  property  for  a  special  purpose  cannot 
use  it  for  another.  When  a  person  hired  a  horse  for  a  speci- 
fied journey,  and  drove  it  beyond,  it  was  held  a  conversion. 
So,  if  the  defendant  wrongfully  set  up  a  claim  for  a  lien  on 
the  property,  in  reply  to  a  demand  for  it,  it  is  sufficient  evi- 
dence of  a  conversion. 3  When  the  owner  demanded  his  ma- 
chinery from  defendants,  who  refused  to  allow  him  to  take  it 
until  they  had  got  other  in  its  place:  Held,  to  be  an  unlawful 
intermeddling  with  the  plaintiff's  property,  without  any  pre- 
tense of  right,  and  sufficient  to  sustain  an  action.* 

§  3Gi.  Innocent  receiver  of  stolen  goods  may  be  liable  for 
conversion.  This  rule  has  been  cai'ried  so  far,  that  a  person 
who  receives  stolen  goods  in  ignorance  of  the  owner's  rights, 
has  been  held  liable  for  them.  Thus,  an  auctioneer  who  re- 
ceives goods  from  a  thief  in  the  ordinary  course  of  business, 
and  sells  them,  and  pays  the  proceeds  to  the  thief,  without  any 
notice  or  knowledge,  was  held  liable  for  conversion. ^  The 
case  of  Ilqffman  v.  Carow  was  cited  approvingly  in  a  Vermont 
case,  and  the  court  says  that  prol)ably  no  case  can  be  found  in. 
conflict  with  it.®  But  where  one  took  goods  in  pledge  for  a 
debt,  not  knowing  they  were  the  goods  of  a  third  party,  and 
afterwards  re-delivered  them  to  his  debtor,  upon  his  promise 

»  Lee  V.  Gould,  47  Pa.  St.  398;  Haythorn  v.  Rushforth,  4  Har.  160;  Ker- 
ley  V.  Hume,  3  T.  B.  Mon.  (Ky.)  181 ;  Marchmaa  v.  Todd,  15  Geo.  25 ; 
Skinner  v.  Stouse,  4  Mo.  93. 

^  Ralston  v.  Black,  15  Iowa,  48;  Squires  v.  Smith,  10  B.  Mon.  CKy.)  83; 
Ely®.  Ehlc,  3  Comst.  506;  Hardy  v.  Clendening,  25  Ark.  436;  Gibbs  v. 
Chase,  10  Mass.  125;  Robinson  v.  Mansfield,  13  Pick.  139;  Phillips  v.  Hall, 
8  Wend.  610;  Allen  v.  Crary,  10  Wend.  349;  Fonda®.  Van  Home,  15  Wend. 
631;  Neff -y.  Thompson,  8  Barb.  213;  Miller  v.  Baker,  1  Met.  27;  Wilson  v. 
Barker,  4  B.  «&  Adolph.  614. 

»  Jacoby  v.  Laussatt,  6  S.  &  R.  300. 

*  Haythorn  v.  Rushforth,  4  Har.  (19  N.  J.)  160. 

«  Hoffman  v.  Carow,  22  Wend.  285.    Contra,  Rogers  v.  Huie,  2  Cal.  573. 

«  Courtis  V.  Cane,  32  Vt.  233.  Consult,  also,  Spraights  v.  Hawley,  39  N.  Y. 
Ml. 


206  THE    DEMAND. 

to  sell  them  and  pay  tlie  proceeds  to  liim,  he  was  not  liable  to 
the  owner.  1  When  defendant,  a  jeweler,  sold  je\veh*y  for  A., 
and  paid  him  proceeds,  without  notice  of  any  other  claim,  he 
was  held  liable  to  the  true  owner  for  the  value.  ^  This  rule, 
at  iirst  blush,  may  seem  harsh;  but  an  auctioneer  or  commis- 
sion man  of  known  responsibility  ought  not  to  lend  the  credit 
of  his  name  to  sell  goods  unless  he  knows  the  title  will  pass. 
If,  through  ignorance  or  carelessness,  he  sells  stolen  goods,  and 
his  customer  be  dispossessed,  he  ought  to  answer;  and  if  the 
goods  be  consumed,  or  cannot  be  had  by  the  true  owner,  it  is 
by  no  means  unjust  that  he  make  good  to  the  owner  their  value, 
which  he  has  lost. ' 

§  3G5.  What  is  rightful  possession.  It  has  been  frequently 
held,  that  when  the  defendant's  possession  was  rightfully  ac- 
quired in  the  first  instance,  that  the  owner  of  the  goods  could 
not  sustain  an  action  for  them  without  proof  of  demand  and 
refusal.*  The  application  of  this  general  rule  reqnires  the 
solution  of  the  question,  What  is  regarded  as  a  rightful  pos- 
session? The  defendant  may  have  purchased  the  goods  from 
one  who,  to  all  appearances,  had  a  lawful  and  perfect  right  to 
sell  and  deliver,  although  in  fact  the  goods  may  have  been 
taken  from  the  owner  by  robbery  or  tlieft;  or,  the  vendor  may 
have  acquired  them  from  the  owner  by  some  fraudulent  prac- 
tice, or  as  bailee  for  some  special  purpose.  A  jeweler  may  sell 
a  watch  left  in  his  hands  for  repair,  or  a  carrier  dispose  of  the 
goods  committed  to  him  for  transportation.  An  officer  of  the 
law,  armed  with  legal  process  against  A.,  may  seize  upon  the 
goods  of  B.  and  sell  them,  or  deliver  them  to  a  custodian  until 
the  day  of  sale.  In  these  and  a  multitude  of  kindred  cases, 
the  possession,  apparently  rightful,  is  really  wrongful,  and  the 
true  owner  can  recover,  and  usually  without  demand.     Tho 

1  Leonard  v.  Tidd,  3  Met.  6. 

»  Bowen  v.  Tenner,  40  Barb.  383. 

*  See  Spencer  tj.  Blackman,  9  Wend.  107;  Everett  t).  Coffin.  6  Wend.  G05; 
M'Combie  v.  Davies,  G  East,  538;  Thorp  v.  Burling,  11  Johns.  285;  Farrar 
v.  Cliaufretete,5  Denio,527;  Pearson t;.  Graham,  6  Ad.&  Ell.  899;  Williams 
u.  Merle,  11  Wend.  80. 

*  Gilchrist  v.  Moore,  7  Clark.  (Iowa,)  11;  Newman  v.  Jenne,  47  Me.  520; 
Stanchfield  v.  Palmer,  4  Greene.  (Iowa,)  25. 


FRAUDULENT   PURCHASER    NOT    ENTITLED    TO   DEMAND.       207 

rnles  are  different  in  different  courts.  It  has  been  held  that 
where  the  defendant  acquired  possession  by  purchase  from  one 
apparently  the  owner,  such  possession  was  so  far  rightful  that 
the  real  owner  must  make  demand  before  brino^ino'  suit;^  but 
it  has  also  been  held  that  where  one  purchased  property  from 
one  who  had  no  right  to  sell,  it  was  a  conversion,  and  the  owner 
could  sustain  replevin  without  demand,  the  good  faith  of  the 
buj'er  being  no  defense. 2 

§  366.  Fraudulent  purchaser,  or  attaching  creditor  of  same 
not  entitled  to  demand.  When  merchandise  was  purchased  on 
credit,  through  fraudulent  representations  by  the  buyer  as  to 
his  responsibility,  and  after  delivery  to  him  was  attached  by 
his  creditors,  the  vendor  was  allowed  to  maintain  replevin 
without  demand. 3  In  a  subsequent  case,  the  right  of  the  de- 
ceived vendor  was  distinctly  put  upon  the  ground  of  his  right 
to  rescind  an  otherwise  valid  sale;  and  it  was  held  he  could 
enforce  his  claim  only  while  the  goods  were  in  the  hands  of 
the  vendor,  or  some  person  with  notice  of  his  rights.'*  In  Micli- 
igan,  when  property  is  disposed  of  without  authority  by  a  per- 
son having  it  in  charge,  the  owner  may  bring  replevin  without 
demand,  even  against  an  innocent  purchaser. ^  So,  in  Maine, 
the  defendant,  though  a  honajide 'pnrchaser  from  one  who  had 
no  title  or  right  to  sell,  is  not  entitled  to  hold  the  property; 
the  owner  may  recover  it  in  replevin  without  demand. ^     A 

'  Stanchfield  v.  Palmer,  4  Greene,  (Iowa,)  24;  Ingalls  v.  Bulkley,  13  IlL 
315;  Hudson  u  Maze,  3  Scam.  578;  Pringle  v.  Phillips,  5  Sandf.  (N.  Y.) 
157;  Hall  v.  Robinson,  2  Comst.  295;  Wood  v.  Cohen,  6  Ind.  455;  Conner 
T.  Comstock,  17  Ind.  90.  Contra,  Lewis  v.  Masters,  8  Blackf.  245;  Bussing 
v.lUce,  2  Cush.  48;  Thurston  v.  Blanchard,  22  Pick.  18;  Buffington  v. 
Gerrish,  15  Mass.  156;  Acker  v.  Campbell,  23  Wend.  372. 

«  Gilmore  v.  Newton,  9  Allen,  171 ;  Riley  1).  Boston  Water  P.  Co.,  11  Cush. 
11;  Farley  v.  Lincoln,  51  N.  H.  577;  Williams  v.  Merle,  11  Wend.  80.  See 
Riford  V.  Montgomery,  7  Vt.  418;  Doty  v.  Hawkins,  6  N.H.  248;  Courtis 
v.  Cane,  32  Vt.  232;  Bloxam  ».  Hubbard,  5  East,  407;  Cooper  v.  Newman, 
45  N.  H  339;  Galvin  v.  Bacon,  11  jMe.  28;  Soames  0.  Watts,  1  C.  &  Payne, 
400;  Stanley  v.  Gaylord,  1  Cush.  536;  Hyde  v.  Noble,  13  N.  H.  494. 

^  Buffington  v.  Gerrish,  15  Mass.  158;  Bussing  v.  Rice,  2  Cush.  48;  Acker 
V.  Campbell,  23  Wend.  372. 

*  Hottman  v.  Noble,  6  Met.  (Mass.)  75. 

*  Trudo  V.  Anderson,  10  Mich.  357. 

*  Prime  v.  Cobb,  63  Maine,  202. 


208  THE   DEMAND. 

\ 

fraudulent  purcLaser  acquires  a  voidable  title.  The  fraud  may 
justify  the  vendor  in  rescinding  the  sale  and  suing  for  the 
goods;  but  until  rescinded,  the  sale  is  valid,  and  it  is  optional 
with  the  vendor  to  affirm  it.  So,  when  goods  obtained  through 
fraudulent  purchase  have  been  sold  to  a  bona  fide  purcliaser, 
without  notice,  replevin  does  not  lie.  The  distinction  is,  that 
a  fraudulent  purchaser  takes  a  title,  voidable,  nevertheless,  but 
jierfectly  valid  until  rescinded;  and  if,  while  holding  a  valid 
title,  he  makes  sale  to  one  without  notice,  the  sale  is  binding 
on  the  owner;  but  a  thief  or  trespasser  takes  no  title,  and  can 
convey  none  by  any  sale  or  delivery  he  may  make. 

§  367.  Fraudulent  taking  confers  no  right  on  the  taker. 
While  the  forcible  seizure  of  goods  of  another  is  always 
regarded  as  wrono-ful,  it  is  no  more  so  than  the  use  of  fraudu- 
lent  means  by  which  to  obtain  possession.  He,  who  by  suc- 
cessful fraud  obtains  the  goods  of  another,  is  equally  guilty 
of  wrongfully  taking  with  him  who  seizes  them  by  superior 
force.  It  follows  that  in  cases  where  the  defendant  fraudu- 
lently obtains  possession  no  demand  is  necessary. i  When 
one  professed  to  have  a  warrant  for  the  arrest  of  another,  and 
under  that  pretense  made  an  arrest  and  obtained  the  delivery  of 
cattle  in  settlement,  replevin  would  lie  for  the  cattle  or  trover 
for  their  value,  without  demand. ^ 

§  368.  Demand  necessary  whera  an  officer  seizes  goods 
from  defendant  named  in  his  process.  Where  an  officer  hold- 
ing proper  legal  process  takes  goods  from  the  possession  of  the 

'  Bussing  V.  Rice,  2  Cusli,  48;  Acker  v.  Campbell,  23  Wend.  372. 

«  Foshay  n.  Ferguson,  5  Hill,  158.  Where  the  defendant  derives  his  pos- 
session by  purchase  for  value,  and  without  any  notice  of  any  right  or  claim 
by  any  other  person,  his  detention  is  usually  regarded  as  riglitful  until  au 
opportunity  has  been  offered  him  to  restore  the  goods.  Priam  v.  Barden,  5 
Ark.  81;  McNeill  t).  Arnold,  17  Ark.  173;  Trapnall  v.  Hattier,  6  Ark.  18; 
O'Neill  V.  Henderson,  15  Ark.  235.  Where  the  original  possession  was 
acquired  by  fraud,  and  under  circumstances  which  did  not  transfer  tlie 
title  from  the  owner,  and  where  the  goods  were  seized  and  sold  on  execu- 
tion against  the  fraudulent  purchaser,  and  purchased  by  the  plaintiff  in 
the  execution,  it  would  seem  that  the  purchaser  acquired  no  better  title 
than  the  original  taker  had.  In  such  a  case  the  defendant  could  not  claim 
title  to  the  goods  and  resist  the  plaintiff  in  the  replevin  suit  on  the  ground 
of  a  want  of  demand  before  suit.    Sargent  c.  Sturm,  23  Cal.  3G0. 


AT   WHAT   TIME   DEMAND   MUST    BE   MADE.  209 

defendant  named  in  his  writ,  he  is  but  doing  his  duty  and  his 
possession  is  lawful,  so  that  replevin  cannot  be  maintained 
against  him  without  demand. i 

§  369.  Contra;  when  he  seizes  goods  from  another.  When 
the  property  is  seized  from  one  not  named  in  the  process, 
the  latter  may  sustain  replevin  upon  showing  that  the  goods 
belong  to  him,  without  proof  of  a  demand.^  The  taking  in 
such  case  is  wrongful.' 

§  370.  Innkeeper  or  carrier;  when  entitled  to  demand. 
A  carrier  has  a  lien  on  goods  which  he  has  transported, 
though  he  might  have  demanded  his  charges  in  advance,  and 
replevin  by  the  consignor  or  owner  would  not  lie  against  him 
without  demand  and  payment  of  charges.  So  of  an  innkeeper 
with  respect  to  the  goods  of  his  guest.  If  a  thief,  however, 
take  goods  and  deposit  them  with  a  carrier  for  transportation, 
or  become  a  guest  at  an  inn,  the  carrier  or  innkeeper  cannot 
resist  the  true  owner  nor  can  either  assert  a  lien,  though  the 
action  cannot  in  such  case  be  sustained  without  demand. * 

§  371.  At  what  time  demand  must  be  made.  The  demand 
must  be  made  before  suit  is  begun. ^  When  demand  was 
made  by  an  officer  after  the  issuing,  but  before  service  of  the 
writ,  while  he  held  the  writ  in  his  hands,  it  was  held  too  late; 
the  issuance  of  the  writ  is  the  bco'inninof  of  the  suit.^  In 
Badger  v.  Flumiey^  15  Mass.  364,  (one  of  the  leading  cases 
on  the  law  of  replevin,)  this  question  arose,  and  the  court 
said :  "  It  is  a  sufficient  answer  to  this,  that  if  the  defendant 
had  delivered  the  goods  on  demand,  there  would  have  been  no 
necessity  to  serve  the  writ."  But  the  general  rule  is  un- 
doubted that  where  goods  came  lawfully  into  possession  of 

'  Vose  u.  Stickney,  8  Minn.  75;  Daumiel  c.  Gorham,  6  Cal.  43;  Taylor  c. 
Seymour,  6  Cal.  512;  Killey  ».  Scannell,  12  Cal.  73;  Bond  v.  Ward,  7  Mass. 
123;  Shumway  n.  Rutter,  8  Pick,  443;  Bancrofts.  Blizzard,  13  Ohio,  30. 

«  Ledley  v.  Hays,  1  Cal.  160;  Tuttle  v.  Robinson,  78  111.  332. 

«  Gimble  v.  Ackley,  12  Iowa,  27;  China  v.  Russell,  2  Blackf.  (Indj  172; 
Buck  '0.  Colbath,  3  Wall.  (U.  S.)  334. 

*  Robinson  t.  Baker,  5  Cush.  137;    Fitch  t.  Newberry,  1  Doug.  (Mich.)  1. 

*  Chenyworth  v.  Daily,  7  Porter,  (Ind.)  284;  Brown  v.  Holmes,  13  Kan.  482. 

*  Alden  n.  Carver,  13  Iowa,  254;  Darling  o.  Tegler,  30  Mich.  54;  Boughton 
c.  Bruce,  20  Wend.  234;  Cummings  v.  Vorce,  3  Hill,  (N.  Y.)  285. 

14 


210  THE   DEMAND. 

defendant,  there  must  be  a  demand  and  refusal,  or  proof  of 
conversion,  before  suit  is  brought;  proof  of  a  conversion,  or 
refusal  to  deliver  after  suit,  will  not  avail.  ^  The  demand 
must  be  made  upon  defendant  at  a  time  when  he  has  it  in  his 
power  to  comply;  his  ability  to  comply  is  essential.  .Demand 
on  one  who  did  not  have  the  property  would  be  useless.  ^ 
But  proof  that  the  defendant  had  parted  with  the  goods 
fraudulently  for  the  purpose  of  avoiding  the  demand,  has 
been  held  sufficient  to  excuse  demand.  ^  If  the  defendant 
have  the  goods  at  another  place  and  offer  to  go  with  the  plain- 
tiff and  deliver  them,  it  will  be  sufficient.  A  refusal  to 
deliver  at  the  place  of  demand  in  such  case,  is  no  evidence  of 
conversion.'* 

§  372.  The  effect  of  failure  to  prove  demand.  One  of  the 
most  important,  and  in  some  respects  one  of  the  most  difficult 
questions  arising  in  the  action,  is  as  to  the  effect  of  a  failure 
to  prove  a  demand.  A  very  common  opinion  is,  that  such 
failure  defeats  the  plaintiff,  and  that  a  return  of  the  goods  will 
necessarily  follow.  Decisions  are  not  wanting  which  seem  to 
sustain  this  view,^  though  its  correctness  may  well  be  doubted. 
Demand  and  refusal,  it  must  be  remembered,  are  evidence  of 
a  conversion;  that  is,  of  a  conversion  at  some  time  prior  to 
the  refusal.^  The  presumption  as  to  when  the  conversion 
was  actually  made,  ought  in  all  cases  to  be  such  as  will  protect 
the  real  equities  of  the  parties.  Lord  Mansfield  once  allowed 
proof  of  a  demand  after  bill  filed,  holding  that  it  was  before 
suit  was  brought,  (that  is  before  service,)  saying  in  substance, 
that  the  courts  ought  to  make  use  of  every  presumption  possi- 
ble, rather  than  that  a  meritorious  party  should  be  defeated 

'  Storm  '0.  Livingston,  6  John.  44;  Powers  t.  Bassford,  19  How.  Pr.  309; 
Purves  ®.  Moltz,  5  Robt.  (N.  Y.)  653. 

MVhitney  v.  Slauson,  30  Barb.  276;  Bowman  'o.  Eaton,  24  Barb.  528; 
Hawkins  v.  Hoffman,  6  Hill,  5S6;  Whitwell  v.  Wells,  24  Pick.  29;  McAr- 
thur  t.  Carrie's  Adrar.,  32  Ala.  87;  Harris  ®.  Hillman,  26  Ala.  380. 

8  Andrews  v.  Shattuck,  32  B  irb.  397 ;  Fenner  t.  Kirkman,  26  Ala.  653. 

*  O'Connell  b.  Jacobs,  115  Mass.  21. 

'  See  cases  cited  in  notes  to  preceding  section. 

•  Jessop  v.  Miller,  1  Kcyes,  (N.  Y.)  321.  See  Purves  t.  Moltz,  5  Ilobts. 
(N.  Y.)  653. 


WAIVES    OF    DEMAND    BY    DEFENDANT.  211 

by  objectious  wliich  do  not  relate  to  the  real  merits  of  the 
controversy.  1  Applying  these  rules  where  a  demand  is  made 
shortly  after  the  writ  issued,  the  refusal  ought,  ordinarily,  to 
be  evidence  of  a  conversion  before  the  writ  issued. ^  If  the 
defendant  had  actually  been  willing  to  surrender,  he  could 
liave  said  so,  and  saved  all  further  litigation.  Where  the 
defendant  sets  up  and  insists  on  a  want  of  proper  demand,  he 
ouifht  in  fairness  to  be  confined  to  that  defense,  or  to  be 
required  to  abandon  it.  If  he  claims  any  lien  or  interest  in  the 
property,  he  ought  not  to  be  permitted  to  set  it  up  and  then 
recover  under  pretense  that  he  would  have  surrendered  the 
property  if  he  had  been  requested  to  do  so.  When  the 
defendant  succeeded  because  of  a  want  of  a  demand,  he  ought 
Tsever  to  have  return,  unless  on  the  clearest  showing  that  he 
is  entitled  to  such  a  judgment;  for  a  defendant  to  recover 
under  pretense  that  he  would  have  surrendered  the  goods  had 
they  been  demanded,  and  then  ask  that  they  be  returned  to 
him  would  seem  absurd.  The  utmost  he  can  ask  would  seem 
to  be  his  costs.  In  cases  where  the  plaintiff  shows  himself  to 
be  the  owner  and  entitled  to  possession  of  goods  had  he  de- 
manded them,  a  mere  oversight  or  neglect  to  prove  demand 
ought  not  to  be  punished  by  taking  his  goods  and  handing 
them  over  to  one  who  asserts  no  title.  The  only  reason  why 
demand  is  necessary  in  any  case,  is  to  give  the  defendant  an 
opportunity  to  surrender  without  being  put  to  costs;  and 
while  this  is  eminently  proper,  the  object  ot  the  rule  is  fully 
accomplished,  and  the  plaintiff  sufficiently  punished  for  his 
neglect  by  judgment  against  him  for  costs,  without  being 
compelled  to  surrender  his  goods. 

§  373.  Waiver  of  demand  by  defendant.  Cases  often  arise 
when  the  defendant  would  be  entitled  to  a  demand,  but  has 
done  some  act  or  made  some  declaration  which  excuses  the 
plaintiff  from  making  it.  Proof  of  any  circumstance  which 
would  satisfy  a  jury  that  a  demand  would  have  been  uuavail- 
ino-  (as  a  refusal  by  the  defendant  to  listen  to  one,  or  a  state- 
ment in  advance  that  he  will  not  deliver,)  will  be  sufficient  to 

>  Morris  v.  Pugh,  3  Burr.  1341. 

«  Badger  v.  Phinney,  15  Mass.  3G4.    See  chapter  entitled  Return,  post. 


212  THE   DEMAND. 

excuse  this  proof.*  If  a  bailee  sets  np  ownership  of  the  goods 
in  himself,  such  claim  is  equivalent  to  a  conversion,  and  the 
action  will  lie  without  demand. ^  The  plaintiff  offered  to  prove 
that  the  defendants  gave  a  general  order  to  all  their  hands  not 
to  deliver  the  horse  in  dispute  to  him,  or  any  one  for  him; 
held^  proper  to  go  the  jury  as  tending  to  prove  a  conversion  by 
defendants..^  Where  parties  stipulated  that  the  goods  should 
be  sold  and  the  jjroceeds  paid  over  to  the  party  who  was 
entitled  to  them,  this  obviated  the  necessity  for  proof  of  a 
demand.'*  "When  the  defendant,  by  his  pleading,  admits  a 
demand,  proof  of  one  is  unnecessary.' 

§  374.  The  same.  Claim  of  ownership  by  defendant. 
Where  the  defendant  sets  up  a  claim  of  ownership  and  demands 
a  return  of  the  goods,  this  claim  is  inconsistent  with  any  hy- 
potheses that  he  would  surrender  them  on  demand,  and  will 
obviate  the  necessity  of  proving  demand.^  And  the  rule  may 
be  stated  as  general,  that  when  the  defendant  contests  the  case 
all  through  the  trial  upon  a  claim  of  superior  right  to  the 
property,  he  cannot  afterwards  set  up  a  want  of  demand  as  a 
reason  for  his  failure  to  surrender.  When  he  desires  to  rely 
on  a  want  of  demand  he  should  show  a  willingness  to  deliver 
the  goods  upon  a  proper  one,  and  that  none  had  been  made.'' 

§  375.  Upon  whom  the  demand  must  be  made.  As  before 
stated,  the  demand  must  be  made  upon  one  who  has  possession 
of  the  goods  and  is  able  to  deliver  them  in  compliance  with 
such  demand. 8     It  should  usually  be  made  personally  upon 

'  Johnson  v.  Howe,  2  Gilm.  344;  Cranz  c.  Kroger,  23  111.  74;  La  Place  v. 
Aupoix,  1  Johns.  Ca.  407 ;  Appleton  v.  Barrett,  29  Wis.  221 ;  Lutz  v.  Yount, 
Phill.  (N.  C.  L.)  367. 

2  Simpson  u  Wrenn,  50  111.  224 

"  Johnson  v.  Howe,  2  Gilm.  344. 

«  Butters  u.  Haughwout,  42  111.  24. 

*  Jones  v.  Spears,  47  Cal.  20. 

«  Seaver  v.  Dingley,  4  Green.  (Me.)  307;  Smith  c.  McLean,  24  Iowa,  337; 
Newell  V.  Newell,  34  Miss.  385;  Cranz  «.  Kroger,  23  111.74;  Perkins  v. 
Barnes,  8  Nev.  557 ;  Pierce  e  Van  Dyke,  6  Hill,  613. 

'  Homan  t).  Laboo,  1  Neb.  207. 

«  Whitney  v.  Slauson,  30  Barb.  276;  Andrews  v.  Shattuck,  32  Barb.  397; 
McAithur  v.  Carrire's  Admr.,  33  Ala.  87;  Whitwell  B.Wells,  24  Pick.  29; 
Lill,  etc.,  r>.  Russell,  22  Wis.  178. 


NO    PARTICULAR    FORM   NECESSARY.  213 

tlio  party  who  is  expected  to  comply  with  it.  A  demand  on 
defendnnt's  wife  or  servant  is  not  sufficient  evidence  of  a  con- 
version by  the  hnsband  or  master.^  But  if  the  party  pretends 
he  has  the  goods  when  the  demand  is  made,  and  induces  the 
phiintiff  to  sue  him,  he  cannot  defend  on  the  ground  that  he 
did  not  have  them. 2  When  goods  are  bailed  to  the  defendant 
a  demand  at  the  house  of  the  bailee  in  his  absence  is  not  evi- 
dence of  a  conversion  unless  it  be  shown  by  circumstances,  or 
otherwise,  that  he  had  actual  notice  of  the  demand  before  the 
suit  was  begun.*  But  if  the  bailee  should  be  guilty  of  any 
actual  conversion  he  is  answerable.  When  one  was  entrusted 
with  a  package  of  money  for  safe  keeping  and  broke  the  pack- 
age and  appropriated  the  money,  he  was  liable  without  de- 
mand.* When  goods  were  in  the  actual  custody  of  the  defend- 
ant's wife  and  daughter,  and  he  absented  himself  from  home, 
the  wife  was  held  his  agent  for  purposes  of  demand  and  refusal.  ^ 
When  the  property  is  held  by  two  or  more  defendants  acting 
severally  the  demand  should  be  upon  both;  but  if  they  be  part- 
ners, or  acting  jointly,  a  demand  on  one  would  be  held  to 
extend  to  both.*" 

§  376.  No  particular  form  nesessary.  There  is  no  particu- 
lar form  to  be  observed  in  making  a  demand,  provided  the 
defendant  is  distinctly  notified  what  goods  are  wanted.''  A 
demand  for  B.'s  stock,  if  not  objected  to,  and  no  claim  that  the 
demand  should   be  more  specific,  is  sufficient. ^     When   the 

'  Storm  V.  Livingston,  6  Jolin.  44;  Mount  v.  Derick,  5  Hill,  456;  Potlio- 
nier  v.  Dawson,  Holt,  N.  P.  383. 

«  Hall  V.  White,  3  Car.  &  P.  136. 

»  White  V.  Demary,  2  N.  H.  546. 

■•  Shelden  v.  Robinson,  7  N.  H.  157.  See  Graves  v.  Ticknor,  6  K  H.  537; 
Poole  7}.  Adkisson,  1  Dana,  110;  Hosmer  v.  Clarke,  2  Gr.  (Me.)  308. 

'  Goldsmith  v.  Bryant,  26  Wis.  39.  In  this  case,  however,  there  was  evi- 
dence  to  show  a  fraudulent  purpose  on  the  part  of  the  defendant  in  absent- 
ing himself,  with  collusion  on  the  part  of  the  wife. 

«  Nisbet  V.  Patton,  4  Rawle,  119;  Newmans.  Bennett,  23  HI. 427;  Mitchell 
■P.Williams,  4  Hill,  13;  Holbrook  «.  Wight,  24  Wend.  169. 

">  Colegrave  v.  Dias  Santos,  2  B.  «fc  C.  76;  La  Place  v.  Aupoix,  1  John.  Ca. 
407;  Thompson  v.  Shirley,  1  Esp.  N,  P.  C.  31;  Smith  v.  Young,  1  Camp. 
440. 

8  Newman  v.  Bennett,  23  111.  428. 


214  THE    DEMAND. 

plaintiff  said,  "  I  have  come  to  demand  raj  property,  here  is  a 
list  of  it."  Held,  sufficient.  A  written  demand  left  at  the 
defendant's  house  may  be  good.^  It  is  not  necessary  that  the 
plaintiff  compel  the  defendant  to  go  with  him  to  point  out  the 
several  articles  demanded,  or  that  he  compel  him  to  listen  to  a 
description  of  them.  It  is  enough  that  the  defendant  refuses 
to  comply,  or  evades  the  hearing  of  demand.  ^ 

§  377.  General  rules  governing  the  demand.  Cases  arise 
where  the  defendant  come  lawfully  into  possession,  and  is  in 
ignorance  of  plaintiff's  rights.  In  such  case  the  demand 
ought  to  be  accompanied  by  some  explanation  or  statement,  so 
that  the  plaintiff  can  act  advisedly.  For  example,  goods  taken 
by  trespass  may  have  come  to  the  defendant's  possession 
through  unquestioned  sources,  and  for  full  value.  An  unex- 
plained demand  for  such  property  by  a  stranger  would  be 
properly  refused.  The  demand  ought  to  be  accompanied  by  a 
statement  of  the  claim,  and,  under  ordinary  circumstances,  a 
reasonable  opportunity  allowed  the  defendant  to  satisfy  himself 
of  the  truth  of  the  claimant's  title. 

§378.  The  same ;  illustrations.  If,  after  demand  is  made 
for  goods,  the  possessor  answer  that  he  is  not  satisfied  that  the 
person  demanding  is  the  owner,  but  that  he  is  ready  to  deliver 
on  reasonable  proof  thereof,  this  will  not  be  regarded  as  a  con- 
version. It  is  the  answer  of  a  prudent  man.  So,  where  one 
claims  to  be  an  agent,  and  demand  goods  for  his  principal,  the 
party  upon  whom  the  demand  is  made  may  require  proof  of 
agency.  3  When  demand  was  made  upon  the  retiring  deacon 
of  a  church,  that  he  surrender  the  communion  service,  he 
replied,  he  "  would  take  the  advice  of  counsel."  Held,  right 
and  prudent.* 

§  379.  Demand  by  father  or  guardian.  A  demand  made  by 
a  father,  or  one  who  stands  in  loco  'parentis,  is  sufficient  for 

1  Logan  ®.  Houlditch,  1  Esp.  N.  P.  C.  22;  1  Chitty  PL  159. 

2  Appleton  «.  Barrett,  29  Wis.  231. 

3  Jacoby  «.  Laussatt,  6  S.  »&  R.  305;  Green  v.  Dunn,  4  Camb.  215;  Solo- 
mons «.  Dawes,  1  Esp.  83 ;  Watt  v.  Potter,  3  Mason  C.  C.  77 ;  Ingalls  ». 
Bulkley,  13  111.  316. 

*  Page  u.  Crosby,  24  Pick.  216. 


BEFU8AL   TO   DELIVER.  215 

property  of  his  minor  children. ^  So,  also,  demand  may  be 
made  by  an  agent  or  any  one  duly  authorized  to  act  for  the 
owner.  When  an  agent  is  charged  with  the  whole  duty  of 
receiving,  receipting  for  and  delivering  property,  as  is  the 
case  with  railroad  and  express  agents,  a  demand  upon  the  agent 
is  a  demand  upon  the  corporation. ^ 

§  380.  Kefusal  to  deliver.  The  true  grounds  therefor  must 
be  stated.  When  the  defendant  refused  to  deliver  to  the  agent 
of  the  plaintiff,  for  the  reason  that  the  agent  had  no  authority, 
his  refusal  must  rest  distinctly  upon  that  ground.  The  agent 
will  then  be  bound  to  produce  his  authority,  or  show  that  the 
defendant's  refusal  is  captious.  If  he  dues  not,  defendant's 
refusal  will  be  only  an  act  of  proper  caution.  To  an  unquali- 
fied refusal,  however,  the  agent  is  not  required  to  produce  any 
authority.  3 

§  381.  The  same.  What  is  a  sufficient  excuse  for  non- 
delivery. When  a  party  claims  a  lien  on  goods  in  his  posses- 
sion, he  should  state  the  amount  of  his  lien,  and  the  grounds 
upon  which  he  bases  it  when  the  demand  is  made.  Retention 
on  other  grounds,  without  such  statement,  will  be  a  waiver  of 
the  lien.  When  work  was  done  on  a  boiler,  for  which  the  de- 
fendant had  a  lien,  as  also  a  general  account  against  the  owner, 
if,  at  the  time  of  the  demand,  he  insisted  on  detaining  it  until 
the  balance  of  the  account  was  paid,  he  could  not  afterward, 
on  trial,  set  up  the  particular  lien  to  defeat  the  plaintiff's  suit. 
If,  however,  he  had  specifically  mentioned  the  amount  for 
which  the  lien  was,  and  asserted  his  right  to  detain  for  that 
amount,  and  for  the  general  balance  of  the  account,  the  plain- 
tiff would  have  been  required  to  tender  the  amount  of  the 
particular  lien  before  he  could  sustain  replevin.*  Neither  can 
a  bailee  of  goods  base  his  refusal  to  deliver  on  demand  or  his 

'  Newman  v.  Bennett,  23  111.  428 ;  Smith  v.  "Williamson,  1  Har.  &  J.  (Md.) 
147. 

«  Cass  V.  N.  Y.  &  K  H.  R.  R.,  1  E.  D.  Smith,  523. 

»St.  John  V.  O'Connell,  7  Porter,  (Ala.)  466;  Zachary  v.  Pace,  4  Eng. 
(Ark.)  212;  Connah  v.  Hale,  23  Wend.  403;  Solomons  v.  Dawes,  1  Esp.  83; 
Jacoby  v.  Laussatt,  6  Serg.  &  R.  300;  Watt  v.  Potter,  2  Mason,  77-81. 

*  Thatcher  v.  Harlan,  2  Houst.  (Del.)  194  ;  Thompson  v.  Trail,  6  B.  «&  C. 
3G ;  White  v.  Gainer,  2  Bing.  23 ;  Jacoby  v.  Laassatt,  6  S.  &  R.  (Pa.)  304. 


216  THE   DEMAND. 

desire  to  consult  his  Lailor,  and  then  at  the  trial  set  up  a  lien 
for  storage.  1  The  law,  in  such  case,  requires  the  defendant 
to  act  in  good  faith,  and  to  put  his  refusal  on  the  true  ground, 
which  he  will  rely  upon  at  the  trial.^  He  cannot  make  one 
excuse  when  the  demand  is  made,  and  then,  when  suit  is 
brought,  defend  on  another  and  diiferent  ground.  The  defend- 
ant, in  answer  to  a  demand,  cannot  pretend  he  has  the  goods, 
and  induce  the  plaintiff  to  sue  him,  and  then  resist  the  suit  on 
the  grounds  that  he  did  not  have  thera.^  When  goods  are 
entrusted  to  a  servant,  and  he  refuses  to  deliver  them  to  a 
stranger,  because  he  had  no  authority  to  do  so,  such  refusal  is 
rot  evidence  of  conversion  in  an  action  against  the  servant. 
Kor  is  a  demand  on  the  servant  sufficient  to  charge  the  master, 
unless  he  acted  under  orders.  If  tlie  servant  refuse,  and  the 
master  afterward  approve  of  the  refusal,  for  the  reason  that  the 
servant  had  no  authority,  it  is  no  evidence  of  conversion  by 
the  master.^ 

§  3S2.  The  same.  It  is  proper  for  the  master,  when  entrust- 
ing property  to  his  servant,  for  which  he  is  responsible  to 
another,  to  direct  that  it  shall  not  be  delivered  to  any  one,  ex- 
cept upon  the  master's  written  or  personal  order,  and  a  demand 
on  the  servant,  under  such  circumstances,  would  avail  noth- 
ing until  he  could  communicate  with  and  take  the  order  of 
the  master.5  "When  W.  and  R.  hired  cows,  and  W.  took  them 
to  his  farm,  some  miles  from  R.'s,  and  at  the  end  of  the  time 
the  owner  demanded  them  from  E.,  who  said  he  would  have 
nothing  to  do  with  the  cows:  Held^  it  was  for  the  jury  to  de- 
termine whether,  by  the  reply,  he  intended  to  withdraw  from 
a  dispute  about  the  property,  (and  if  so,  it  was  no  conversion,) 
or  to  collude  with  W.  to  hinder  the  owner  from  recovering 
his  property,  which  latter  would  be  equivalent  to  a  positive 
refusal.^ 

'  Holbrook  n.  "Wight,  24  Wend.  169. 

«  Isaack  v.  Clark,  2  Bulet,  312;  Jacoby  t>.  Laussatt,  6  S.  &  R.  (Pa.)  304. 

3  Hall  V.  White,  3  Car.  &  P.  136. 

4  Mount  ■».  Derick,  5  Hill,  456;  Mires  «.  Solebay,  2  Mod.  242;  Alexander 
«.  Southey,  5  B.  &  Aid.  247 ;  Storm  v.  Livingston,  6  John.  44;  4  Inst.  317. 

*  Page  t.  Crosby,  24  Pick.  215. 
«  Mitchell  «.  Williams,  4  Hill,  16. 


EEFUSAL   TO    DEUVEK.  217 

§  383.  The  same.  The  defendant  rightfullj  took  certain 
property,  and  with  it  a  stone.  Phiintiff  demanded  its  return. 
Defendant  said  he  could  have  it  by  going  to  his  (defendant's) 
locker.  Plaintiff  refused  to  go,  but  demanded  its  return  to 
the  place  whence  it  was  taken.  Defendant  refused  to  comply. 
Jleldy  no  conversion.  1 

•  O'Connell  v.  Jacobs,  115  Mass.  21. 


21S 


THE   BOMD. 


CHAPTER  XIY 


THE  BOND. 


Section. 

No  bond  required  by  the  com- 
mon law 384 

The  English  statutes  the  basis 
of  the  law  concerning  bond 
in  this  country    .        .  385  to  387 

The  bond  a  prerequisite    388  to  391 

The  bond  must  conform  to  the 
statute 393 

The  bond  not  necessary  to  the 
trial 393 

Where  the  sheriff  is  a  party      .  394 

Defendant  may  give  bond  and 
retaia  the  property        .        .  395 

Bond  not  necessary  where  the 
plaintiff  does  not  ask  delivery  396 

Objects  and  purposes  of  the 
bond        ...       397  to  399 

Amount  of  penalty  in  the  bond ; 
how  ascertained      .        .        .  400 

Sheriff  may  take  the  property 
for  purpose  of  appraisement  401 

Sheriff  not  required  to  prepare 
bond ;  duty  of  the  party        .  403 

To  whom  payable      .        .        .  403 

Though  defective  as  a  statutory 
bond,  it  may  be  good  at  com- 
mon law     .        .        .        404,  405 

By    whom    it    must    be    exe- 
cuted       ....  40(3,  407 
How  executed    .        .       408  to  412 
The  conditions  separate  and  in- 
dependent of  each  other        .  413 
The    conditions    to    prosecute 

without  delay  ....  414 
To  prosecute  with  effect    .  415,  416 


Section. 
Prosecution    in    interior  court 

not  sufficient  when  the  case  is 

appealed  .... 
Death  of  party  pending  suit 
The  condition  to  return    . 
Offer  to  return  unaccompanied 

by  a  tender  not  a  perform- 
ance        .... 
The  condition  to  return  requires 

the  return  of    the   identical 

goods       .... 
And  in  as  good  order  as  when 

taken       .... 
Judgment  for  a  return,  a  breach 

of  the  condition 
The  bond  only  relates  to  claims 

in  the  suit  in  which  it  is  given  424 
Actual  delivery  of  the  goods  on 

the    writ    precedes    liability 

upon  the  bond 
Actual  return  in  as  good  order 

a  compliance  with  this  con- 

dition       .... 
Right  of  action  accrues  upon  a 

failure  to  keep  any  of  the  con- 
ditions    ....  437, 
Right  of  the  securities      429  to  4:j1 
Any  material  alteration  in  the 

bond  annuls  it        .        .        .  433 
The  same.    Securities  bound  by 

acts  of  the  principal       .        .  433 
But  a  settlement  does  not  bind 

nor  discharge  them        .        ,  434 
Submission  to  arbitration  does 

not  bind  securities  .        .        .  435 


417 
418 
419 


420 


421 


423 


423 


425 


426 


423 


THE   ENGLISH    STATUTE. 


219 


Technical  defenses  to  bond  not 
favored    ....  436,  437 

The  liability  of  a  guardian  per- 
sonal 438 

Where  the  words  are  ambiguous 
the  intent  will  govern    .        .  439 

Proceedings  on  the  bond  gov- 
erned by  statute      .        .        .  440 

Debt  a  proper  form  of  action 
thereon 441 

Assignment  of  the  breaches      .  442 

Proceedings  in  the  replevin  es- 
sential to  sustain  suit  on  the 
bond 443 

The  material  facts  to  be  set  up  .  444 

"When  bond  is  lost  from  the  files  445 

Defense  to  suit  on  bond    .        .  44(j 

When  ownership  of  property  is 
settled  in  the  replevin  suit    .447 

When  not  so  settled,  it  may  be 
set  up  in  suit  on  the  bond      .  448 

Defenses  which  should  be  made 
in  the  replevin  suit        .        .  449 

Miscellaneous  rules  in  suits  on 
bond 450 


Variation  in  description  be- 
tween the  bond  and  affidavit 
no  defense 451 

Submission  of  the  replevin  suit 
to  arbitration  a  defense  .        .  453 

Value  of  the  property  stated  in 
bond;  how  far  binding  .        .  453 

Where  the  value  of  a  number 
of  articles  is  stated  at  a  gross 
sum 454 

Effect  of  the  destruction  of  the 
property 455 

Parties  to  suit  on  bond  cannot 
discharge  it  to  the  injury  of 
the  sheriff        .        .        .        .456 

Damages  on  bond ;  how  assessed  457 

The  same.    Amount  of      .        .  458 

The  same,  la  case  of  joint 
owner 459 

Release  of  bond  by  seizure  on 
another  writ  pending  suit      .  460 

Limitation  to  suit  on  bond        .  461 

Suit  on,  by  sheriff,  may  be  in 
his  individual  name       .  463 


§  384.  No  bond  required  by  the  common  law.  By  the  com- 
mon law  no  bond  was  required,  the  only  security  being  the 
pledges  to  prosecute  the  suit,  or  answer  to  the  King  for  false 
clamor.  1 

§  385.  The  English  statute.  By  statute  11  George  II.,  Ch. 
19,  §  23,  the  sheriff  was  required  to  take  from  the  plain tiif  a 
bond,  with  two  securities,  in  double  the  value  of  the  goods 
about  to  be  replevied,  conditioned  to  prosecute  the  suit  with 
effect  and  without  delay,  and  for  a  return  of  the  goods  if  return 
should  be  awarded  by  the  court.  The  sheriff  was  liable  as  a 
trespasser  if  he  served  the  writ  which  commanded  a  delivery 
of  the  goods  without  first  taking  bond.  He  was  also  liable  for 
the  sufliciency  of  the  securities, 2  even  up  to  the  time  they  were 


'  Arde,  %  26;  Caldwell  v.  West,  1  Zab.  (21  N.  J.)  420. 

'  Pearce  v.  Humphreys,  14  S.  &  R.  (Pa.)  25;  Oxley  v.  Cowperthwaite,  1 
Dall.  350 ;  Myers  v.  Clark,  3  W.  &  S.  (Pa.)  539.  The  sheriff  was  required 
to  take  security  at  his  peril.    Gibbs  v.  Bull,  18  Johns.  437. 


220  THE   BOND. 

called  upon  to  make  good  their  obligation.  Tlie  liarsliiiess 
of  this  rule  has  been  modified  somewhat,^  and  where  one  of 
the  securities  is  solvent  the  fact  that  others  may  have  been 
insolvent  does  not  render  the  officer  liable. ^  The  statute  also 
provided  that  the  sheriff  might  assign  the  bond  to  the  avow- 
ant, or  to  the  person  making  cognizance,  either  of  whom  might 
bring  suit  thereon  in  his  own  name  if  the  conditions  were 
broken.3  This  form  of  proceeding  was  the  common  practice 
in  this  country,  and  still  prevails  in  many  of  the  States.  In 
others  the  bond  is  made  directly  to  the  defendant.  Upon 
this  question  the  statute  of  the  State  where  the  suit  is  pend- 
ing will,  of  conrse,  govern.  The  statute  17  Car.  2,  Ch.  7,  A. 
D.  1665,  provided  that  when  the  plaintiff  was  defeated  the 
avowant  should  have  judgment  against  the  plaintiff  for  the 
rent  in  arrear,  in  case  the  value  of  the  cattle  distrained  amounted 
to  so  much,  or  for  an  amount  equal  to  the  value  of  the  gooods. 
In  case  the  value  of  the  goods  did  not  equal  the  rent,  then  for 
the  value  of  the  goods  with  execution  thereon,  and  the  right 
to  distrain  again  for  any  further  sum  due  for  rent.  Prior  to 
the  case  of  Perreau  v.  Bevan^  5  Barn.  &  Cress.  284,  it  had 
been  a  question  as  to  whether  the  landlord  who  elected  to  pro- 
ceed under  this  statute  had  any  remedy  upon  the  bond.  Since 
that  case,  however,  such  right  has  not  been  seriously  ques- 
tioned. The  Statute  11  George  II.,  Ch.  19,  A.  D.  1738,  was 
held  to  confer  an  additional  remedy,  and  to  be  in  aid  of  the 
proceeding  pointed  out  in  the  Statute  of  17  Car.  2.* 

§  386.  The  English  statutes  the  basis  of  the  law  concerning 
bond  in  this  country.  The  Statute  11  George  II.,  Ch.  19,  is 
the  basis  upon  which  a  large  proportion  of  the  statutes  in  this 
country  are  framed.  Its  provisions  and  the  decisions  under  it 
have  been  the  foundation  which  no  inconsiderable  part  of  the 
cases  in  this  country  rest.^ 

'  Hindle  v.  Blades,  5  Taunt.  225. 

2  Lord  V.  Bicknell,  35  Me.  53. 

3  Ackers.  Finn,  5  Hill,  293;  Knapp  v.  Colburn,  4  Wend.  618.  SeeWaples 
«.  Adkins,  Admr.,  etc.,  5  Har.  (Del.)  381. 

■*  Consult  Perreau  v.  Bevan,  5  Barn.  &  Cress.  234,  and  the  cases  there 
cited. 
*  Knapp  V.  Colburn,  4  Wend.  618. 


THE    BOND    A    PKEREQUISITE.  221 

§  3S7.  Assignment  of  the  bond  to  defendant.  Tlie  usual 
proceeding,  under  that  statute,  and  generally  under  statutes 
when  the  bond  is  to  the  sheriff,  is  for  the  sheriff,  (in  case  the 
bond  is  forfeited,)  to  assign  it  to  the  defendant  in  the  replevin 
suit,  who  may  sue  the  maker  and  his  security  in  his  own  name 
as  assignee.  Without  the  clause  authorizing  the  assignment, 
the  defendant  was  driven  to  intricate  proceedings  against  the 
sheriff,  or  in  the  name  of  the  sheriff  against  the  bondsmen,  ^ 
The  taking  of  an  assignment  of  the  bond  from  the  sheriff  is 
no  waiver  of  a  right  to  proceed  subsequently  against  him  for 
taking  insufficient  securities,  in  case  they  should  prove  to  be 
BO.  A  return  o^  nulla  hona  to  an  execution  upon  a  judgment 
against  the  securities  in  a  replevin  bond  is  not  conclusive  so 
as  to  render  the  sheriff  liable.  Proof  of  their  solvency  or 
insolvency  may  be  made  by  the  parties  and  determined  as 
other  issues. 3  A  release  of  the  security  is  equivalent  to  a 
release  of  the  sheriff,^  and  pending  a  suit  upon  the  bond  the 
suit  against  the  sheriff  is  suspended.* 

§388.  The  bond  a  prerequisite.  The  proper  execution  of 
the  bond  in  this  action  is  a  statutory  prerequisite  to  the  deliv- 
ery of  the  property  upon  the  writ.^  This  was  the  rule  not 
only  under  the  English  law,  but  governs  in  States  where  the 
rules  of  the  English  law  prevail.  The  officer  cannot  deliver 
the  property  without  first  taking  bond.  The  command  of  the 
writ,  as  usually  framed,  is  conditional,  viz.:  "If  the  plaintiff 
shall  give  you  security',"  etc.  The  prior  execution  of  the  bond 
is  as  essential  as  the  affidavit;  without  it,  the  writ  will  be 
quashed,  and  the  judgment  will  order  a  return  of  the  goods  to 
the  defendant  with  damages  for  the  wrongful  taking.' 

>  Gould  V.  Warner,  3  Wend.  60. 

«  Myers  v.  Clark,  3  W.  &  S.  (Pa.)  539. 

«Ib. 

*■  Commonwealth  v.  Roes,  3  Whart.  (Pa.)  124;  Mj'ers  tj.  Clark,  3  W.  &  S. 
(Pa.)  539;  Hallett  v.  Mountstephen,  3  Dowl.  &  Ryl.  343. 

»  Pool  V.  Loomis,  5  Aik.  110.  Bond  precedes  the  execution  of  the  writ. 
Luther  v.  Arnold,  7  Rich,  (S.  C.)  397.  Whitney  p.  Jenkinson,  3  Wis.  407; 
Smith  V.  McFall,  18  Wend.  521 ;  Milliken  v.  Selye,  6  Hill,  623. 

•  Bond  must  be  furnished  before  writ  can  be  served.  Kendall  v.  Fltts,  3 
Fost  (N.  H.)  8;  Greeley  v.  Currier,  39  Me.  518;  Thomas  v.  Spoflord,  46  Me. 


222  THE    BOND. 

§  389.  Permission  to  prosecute  as  a  pauper  does  not  excuse 
giving  bond.  The  action  cannot  be  prosecuted  in  forma  patt- 
pei'iSf'  that  is,  the  taking  of  the  pauper's  oath  will  not  do 
away  with  the  necessity  of  the  bond.  Plaintiif  may  obtain 
the  services  of  the  officers  without  cost  by  taking  the  neces- 
sary oath  and  obtaining  permission  of  the  court,  but  this  will 
not  entitle  him  to  a  seizure  of  the  goods,  nor  justify  the  officer 
in  making  such  seizure,  without  bond.^ 

§  390.  Wealth  of  the  plaintiff  no  excuse.  IS'either  will  the 
fact  that  the  plaintiff  is  a  man  of  abundant  means  furnish  an 
excuse  for  not  taking  the  formal  bond,  with  securities  required 
by  the  statute  ;2  nor  will  a  deposit  of  money  answer  in  place 
of  the  bond.'  The  statutory  bond  being  in  all  cases  indis- 
pensable before  the  delivery  of  the  property  by  the  officer,  he 
is  guilty  of  trespass  if  he  make  the  delivery  without  it,^  and 
the  defendant  ma}'  at  once  bring  suit  against  the  officer,  or 
may  elect  to  abide  the  result  of  the  replevin  suit,  as  he 
chooses.  5 

§  391.  Delivery  cannot  be  made  without  bond  given.  The 
officer  may  commence  to  execute  the  writ  before  taking  bond; 

408.  Sheriff  liable  in  case  he  fails  to  take  bond  as  required  by  tliis  statute. 
State  V.  Stephens,  14  Ark.  266;  State  v.  Boisliniere,  40  Mo.  568;  Harriman 
7).  Wilkins,  20  Me.  96;  Kesler  v.  Haynes,  6  Wend.  547;  Nunn  v.  Goodlett,  5 
Eug.  (Ark.)  100.  "  Bond  for  cost  is  not  sufficient ;  it  must  be  in  compliance 
•with  the  statute,  or  the  suit  will  be  dismissed."  Creamer  v.  Ford,  1  Heisk. 
(Tenn.)307.  "  Failing  to  give  bond  works  a  discontinuance."  Weathersby 
V.  Sleeper,  42  Miss.  733;  Deardorlf  «.  Ulmer,  34  Ind.  353;  Graves  v.  Sittig, 
5  Wis.  219.  And  the  judgment  is  for  a  return,  and  damages  follow.  M»)r- 
ris  V.  Baker,  5  Wis.  389 ;  Parkers.  Hall,  55  Me.  364.  "  The  bond  is  as  essential 
.8  the  affidavit."  Smith  v.  McFali,  18  Wend.  521;  Wilson  ®.  Williams,  18 
Wend.  581;  Whaling  v.  Shales,  20  Wend.  673;  Morris  v  Van  Voast,  19 
Wend.  283;  Graves  v.  Sittig,  5  Wis.  219.  If  the  sheriff  has  taken  the 
property  without  first  taking  bond  with  proper  security,  he  ought  at  once 
to  return  it  to  the  defendant.  State  v.  Stephens,  14  Ark.  264;  Piruni  v. 
Barden,  Pike,  (5  Ark.)  81. 

>  Horton  v.  Vowel,  4  Heisk.  (Tenn.)  622. 

«  Smith  V.  Trawl,  1  Root,  (Conn )  165;  Harriman  v.  Wilkins,  20  Me.  96. 

8  Cummings  v.  Gann,  52  Pa.  St.  488. 

*  Dearborn  v.  Kelley,  3  Allen,  (Mass.)  426 ;  Armstrong  v.  Burrell,  12  Wend. 
303. 

*  Whitney  v.  Jenkinson,  3  Wis.  408;  O'Grady  v.  Keyes,  1  Allen,  (Mass.) 
284. 


MUST   CONFOJIM    TO   THE   STATUTE.  223 

that  is,  M'here  the  statute  requires  an  appraisal,  lie  may  have 
the  goods  appraised,  and  for  that  purpose  may  take  the  prop- 
erty, if  necessary,  from  the  defendant ;i  but  he  cannot  lawfully 
deliver  it  to  the  plaintiff  until  he  shall  first  have  taken  bond 
as  the  law  provides.  When  the  goods  are  so  taken  for  ap- 
praisment,  unless  the  plaintiff  promptly  executes  the  bond 
demanded,  the  sheriff  ought  to  return  them.^  From  the  cases 
cited,  it  is  clear  that  when  the  sheriff  serves  the  writ  by  deliv- 
ering the  property  without  first  taking  bond,  or  where  the 
bond  taken  is  defective  under  the  statute,  the  defendant  may 
abate  the  writ  on  motion,  and  compel  a  return  of  the  goods, 
or  he  may  regard  the  taker  as  a  trespasser  and  recover  dam- 
ages as  in  other  cases  of  trespass  to  personal  property;  but  he 
cannot  have  trespass  with  the  other  actions  for  the  value  or 
for  the  goods.  3 

§  392.  The  bond  must  conform  to  the  statute.  The  bond 
must  conform  to  the  statutory  requirements  in  all  essential 
particulars.  It  must  be  in  double  the  value  of  the  property 
about  to  be  replevied,  but  if  it  be  in  excess  of  that  amount 
that  fact  will  not  render  it  defective."*  Defects  in  the  form  of 
the  bond  may  be  taken  advantage  of  by  plea  in  abatement  or 
by  motion  to  dismiss, ^  or  the  defendant  may,  if  he  prefer 
such  course,  obtain  a  rule  of  court  upon  the  plaintiff,  requir- 
ing him  to  furnish  a  bond  in  proper  form.  Delects  in  the 
bond  should  be  taken  advantage  of  in  the  first  instance,  and 
such  objection  comes  too  late  after  verdict  and  judgment. ^  In 
case  the   sheriff  take   bond  in   an   insufficient   amount,  the 

'  Smith  v.  Whiting,  97  Mass.  B16;  Wolcott  v.  Mead,  12  Met.  (Mass.)  516. 

'  State  V.  Stepliens,  14  Ark.  204.  The  statute  of  Wisconsin  allows  the 
officer  to  take  the  property  and  hold  it  a  reasonable  time  to  permit  the 
plaintiff  to  give  bond.  Graves  v.  Sittig,  5  Wis.  219.  But  unless  there  are 
statutory  exceptions,  the  officer  cannot  serve  the  writ  until  the  bond  is 
furnished. 

"  Parker  v.  Hall,  55  Me.  364;  Cady  v.  Eggleston,  11  Mass.  285. 

*  Owen  V.  Nail,  6  T.  R.  702  and  339 ;  Clap  v.  Guild,  8  Mass.  154 ;  Freeman 
V.  Davis,  7  Mass.  200;  Bugle  v.  Myers,  59  Ind.  73;  Whitney  v.  Jenkinson,  3 
Wis.  407;  Smith  v.  McFall,  18  Wend.  521. 

6  Houghton  V.  Ware,  113  Mass.  49;  Hicks  v.  StuU,  11  B.  Mon.  53;  Doug- 
lass V.  Gardner,  63  Me.  462. 

•  Bugle  V.  Myers,  59  Ind.  73. 


22i  THE   BOND. 

defendant  may  object  and  move  to  dismiss  tlie  suit,  or  lie  may 
Lave  an  action  against  the  sheriff  for  his  neglect.  ^ 

§  393.  The  bond  not  necessary  to  the  trial.  Tlie  bond,  when 
in  form  and  sufficient,  is  not  necessary  to  the  trial;  the  case 
proceeds  without  reference  to  it.  It  is  only  after  judgment, 
and  a  failure  on  the  part  of  the  plaintiff  to  keep  the  conditions, 
that  resort  can  be  had  to  it. 2  Its  absence,  therefore,  at  the 
trial,  would  in  no  way  affect  the  jurisdiction  or  proceeding  of 
the  court. 3  The  neglect  of  the  sheriff  to  take  bond  is  not  a 
contempt  of  court  for  which  an  attachment  will  be  issued.* 

§  304.  Where  the  sheriff  is  a  party.  Where  the  sheriff  is 
interested  in  the  replevin  suit,  the  writ  is  directed  to  the  cor- 
oner, who  must  take  the  bond.  The  statute  means  that  the 
bond  shall  be  taken  by  the  officer  who  executes  the  writ.^  So 
a  bond  to  the  deputy  sheriff  who  signed  the  return,  when  he 
as  such  deputy  assigned  tlie  bond  to  the  party,  was  held  suffi- 
cient under  a  statute  which  required  the  bond  to  run  to  the 
officer  serving  the  writ,  designating  him  as  "such  officer."^ 

§  395.  Defendant  may  give  bond  and  retain  the  property. 
In  many  of  the  States,  provisions  exist  by  statute,  which  allow 
the  defendant  claiming  the  property,  a  reasonable  time  within 
which  to  give  bond  to  the  plaintiff,  and  by  so  doing  he  has  the 
right  to  retain  possession  of  the  goods  pending  the  suit.  In 
such  case  no  liability  attaches  to  the  makers  of  the  plaintiff's 
bond. 

§  396.  Bond  not  necessary  where  the  plaintiff  does  not  ask 
delivery.  Statutes  also  exist  in  many  States,  by  which  the 
plaintiff  may  have  the  writ  without  the  command  to  deliver 
the  goods.  In  such  case  the  property  remains  in  the  defend- 
ant's possession  during  the  suit,  and  a  delivery  to  plaintiff 

>  Deardorff  «.  Ulmer,  34  Ind.  353;  O'Grady  v.  Keyes,  1  Allen,  (Mass.) 
284.  So,  when  a  deputy  sheriff,  acting  for  his  superior,  take  insufficient 
security,  the  sheriff  is  responsible.     Harrinaan  v.  Wilkius,  20  Me.  96. 

«  Tuck  V.  Moses,  58  Me.  463 ;  Pirani  v.  Barden,  5  Ark.  81. 

8  Tripp  V.  Howe,  45  Vt.  524;  Kesler  v.  Haynes,  6  Wend.  (N.  Y.)  547. 

*  Rex  V.  Lewis,  2  Term.  R.  617 ;  Twells  v.  Coldville,  Willes,  375. 
»  Speer  v.  Skinner,  35  111.  284. 

•  Wliceler  e.  Wilklns,  19  Mich.  80. 


RETURN    WITH    THE    WRIT.  223 

only  follows  a  judgment  of  the  court  in  his  favor;  conse- 
quently, in  such  case  no  bond  is  required. 

§  397.  Description  of  the  bond.  The  bond,  in  modern 
practice,  is  an  obligation  for  the  payment  of  the  sum  named 
therein,  upon  certain  conditions.  The  principal  conditions 
are,  that  the  plaintilf  shall  prosecute  his  suit  with  effect  and, 
without  delay,  or  in  case  of  failure  to  do  so,  shall  make  return 
of  the  goods,  (if  return  be  awarded,)  and  shall  pay  such  dam- 
ages as  shall  be  awarded  in  case  of  failure  to  do  so  —  in  some 
States  a  condition  is  inserted  that  the  party  shall  save  and 
keep  harmless  the  sheriff,  in  making  the  replevin  —  with  a 
proviso  that  if  the  conditions  are  kept  and  fuliilled,  the  obli- 
gation shall  be  void. 

§  398.  Objects  and  purposes  of  the  bond.  Originally  the 
bond  was  designed  to  furnish  indemnity  to  the  sheriff  in 
taking  the  goods  from  the  defendant.^  In  modern  practice 
the  bond  is  not  only  to  indemnify  the  officer,  but  it  is  looked 
upon  as  furnishing  additional  security  to  the  defendant  as 
well,  in  case  the  action  is  not  sustained  ;3  the  object  of  the 
bond  being  to  compel  the  plaintiff  to  prosecute  his  suit  with 
effect  and  without  delay,  and  in  case  of  failure  to  return  the 
goods,  if  return  be  awarded ;3  or,  to  furnish  the  defendant 
with  a  sufficient  indemnity  in  case  its  conditions  are  no*" 
complied  with.* 

§  399.  The  return  of  the  bond  with  the  writ.  The  sheriff 
is  required  to  return  the  bond  with  the  writ,  so  that  the 
defendant  may  inspect  it,  and  object  to  its  form  or  sufficiency, 
or  to  the  solvency  of  the  securities.  In  some  States  this  is  a 
statutory  provision,  in  others  a  rule  of  practice. ^  Upon  the 
return  of  the  bond  to  the  court,  the  defendant  may  file  excep- 

'  Armstrong  v.  Burrell,  12  Wend.  302;  Gordon  v.  Williamson,  I  Spence, 
(20  N.  J.)  81 ;  Barry  v.  Sinclair,  Phill.  (N.  C.)  7. 

■'  Lan^doc  v.  Parkinson,  2  Bradw.  (111.)  138;  Petric  v.  Fisher,  43  111.  443; 
Fahnestock  v.  Gilhara,  77  111.  637;  Nunn  v.  Goodlett,  5  En.^.  (Ark.)  100; 
Smith  0.  Whiting,  97  Mass.  316;  Doogan  v.  Tyson.  6  Gill.  &  J.  (Md.)  453. 

3  Badlam  v.  Tucker,  1  Pick.  287. 

*  Belt  V.  Worthington,  3  Gill.  &  J.  (Md.)  247;  Doosan  v.  Tyson,  6  Gill.  & 
J.  (Md.)  453. 

»  Petrie  v.  Fisher,  43  111.  443 ;  Nunn  v.  Goodlett>  5  Eng.  (Ark.)  100. 
15 


226  THE   BOND. 

tions  to  its  form,  or  to  the  sufficiency  of  the  securities.  In 
case  the  exceptions  are  sustained,  plaintiff  may  be  required  to 
furnish  a  good  bond,  and  if  he  neglect  to  do  so,  his  suit  may 
be  dismissed  and  a  return  of  the  property  awarded.^ 

§  400.  Amount  of  penalty  in  the  bond  The  mode  of  ascer- 
taining the  vahie  of  the  property  as  a  basis  for  fixing  the 
penalty  to  be  inserted  in  the  bond,  varies  in  different  States. 
By  the  English  law  tlie  sheriff  was  required  to  take  bond  in 
double  the  value  of  the  property,  and  also  to  see  that  the  bond 
was  sufficient  not  only  in  respect  to  the  solvency  of  the  secur- 
ity, but  in  the  amount  for  which  it  was  taken.  In  States 
where  the  law  does  not  require  an  appraisment,  the  practice 
has  become  general  to  accept  the  statement  in  the  affidavit  as 
the  value  of  the  property;  and  the  officer  is  usually  governed 
by  it.  In  some  States  this  is  a  statutory  provision, ^  in  others 
a  rule  adopted  by  general  consent.  The  sheriff,  however, 
unless  the  statute  requires  it,  is  not  bound  by  the  value  stated 
in  the  affidavit.  Where  there  is  no  statutory  method  provided 
for  fixing  that  value,  as  by  appraisment  or  otherwise,  it  is  his 
duty  to  see  that  the  penalty  in  the  bond  is  large  enough,  up 
to  double  the  value,  to  fully  indemnify  him  in  making  the 
replevin,  and  to  protect  the  defendant  from  loss.^  In  other 
States  the  statute  requires  that  the  property  shall  be  appraised 
by  disinterested  parties,  who  fix  the  value  after  an  inspection. 
In  such  case  the  amount  of  the  bond  is  based  upon  the 
amount  of  such  appraisment.'*  The  parties  may  agree  and  so 
fix  the  value,  and  that  will  be  sufficient  and  binding  on  botli.^ 

§  40 1.  Sheriff  may  take  the  property  for  purpose  of  apprais- 
ment. Although  the  officer  has  no  right  to  deliver  the  prop- 
erty to  plaintifi"  until  the  bond  is  executed  and  delivered  to 

>  Allen  V.  Judson,  71  N.  T.  77. 

2  Deardorff  v.  Ulmer,  34  Ind.  353.     See  Pomeroy  v.  Timper,  8  Allen,  401. 

3  Murdoch  v.  Will,  1  Dall.  341 ;  Kimball  v.  True,  34  Me.  88;  Piunket  v. 
Moore,  4  Har.  (Del.)  379;  Jeffery  v.  Bastard,  4  Adol.  &  E.  823;  Roach  v. 
Moulton,  1  Chand.  (Wis)  187;  Thomas  ij.  Spofford,  46  Me.  408;  Gibbs  w. 
Bull,  18  Johns.  435;  Harrimaa  v.  Wilkius,  20  Me.  93;  People,  etc.  v.  Core, 
85  111.  248. 

*  Look  at  Aulick  v.  Adams,  12  B.  Mon.  104. 
"  Wolcott  V.  Mead,  12  Met.  51G. 


DEFECTIVE    AS   A    STATUTORY    BOND.  227 

him,  yet,  for  the  purposes  of  appraisment,  he  may  take  the 
property  into  his  possession,!  and  upon  that  being  done,  if 
the  bond  is  not  promptly  forthcoming,  the  sheriff  must  return 
the  goods  to  the  defendant. ^ 

§  402.  Sheriff  not  required  to  prepare  bond ;  duty  of  the 
party.  The  duty  imposed  upon  the  sheriff  to  take  the  bond 
does  not  require  him  to  demand  it  from  the  plaintiff  nor  to 
prepare  it  to  be  executed.  The  obligation  to  "take  bond," 
means  that  he  must,  when  a  sufficient  bond  is  tendered  him 
by  the  plaintiff  or  his  attorney,  accept  it  and  execute  the 
writ. 3  A  delivery  of  the  bond  properly  executed,  to  the 
sheriff,  is  a  sufficient  delivery  for  all  purposes.'* 

§  403.  To  whom  payable.  The  common  law  required  the 
sheriff  to  take  the  bond  to  himself.  In  many  of  the  States, 
however,  it  is  by  statute  to  be  made  to  the  defendant.  When 
the  statute  requires  it  to  the  defendant,  the  officer  is  a  tres- 
passer if  he  take  the  goods  upon  a  bond  to  himself,  and  the 
instrument  is  void.s  The  statutory  provisions  upon  this 
question  must  therefore  be  closely  followed. 

§  404.  Though  defective  as  a  statutory  bond,  it  may  be  good 
at  common  law.  AVhile  the  bond  may  be  faulty  under  the  stat- 
ute, and  insufficient  to  sustain  the  plaintiff's  suit  if  objections 
are  properly  interposed,  yet,  when  the  plaintiff  has  had  the 
goods  delivered  to  him,  and  he  is  defeated,  and  for  any  reason  the 
judgment  is  against  him,  the  fact  that  the  bond  does  not  con- 
form to  the  statute  is  no  defense  to  a  suit  thereon.  It  may  be 
entirely  inadequate  as  a  statutory  bond  to  sustain  replevin  on, 
but  may,  nevertheless,  be  good  as  a  common  law  bond,^  and 

'  Smith  V.  Whiting,  97  Mass.  316. 

^  State  V.  Stephens,  14  Ark.  264;  Smith  v.  "Whiting,  97  Mass.  316;  Wol- 
cotl  V.  Mead,  12  Met.  (Mass.)  516. 

3  State  V.  Stephens,  14  Ark.  266. 

*  Smith  V.  Whiting,  97  Mass.  317. 

«  Purple  V.  Purple,  5  Pick.  226. 

6  Claggett  V.  Richards,  45  IST.  H.  360;  Tuck  v.  Moses,  54  Me.  115;  Persse 
«.  Watrous,  30  Conn.  140;  Bell  v.  Thomas,  8  Ala.  527;  Barry «.  Sinclair, 
Phill.  (N.  C.)  7;  Florrance  v.  Goodin,  5  B.  Mon.  (Ky.)  Ill;  Lambden  v. 
Conoway,  5  Har.  (Del.)  1. 


228  THE    BOND. 

as  such,  must  receive  such  construction  as  will  most  effectually 
accomplish  the  intent  of  the  parties  to  it.^ 

§  405.  The  same.  Construction.  In  Morse  v.  Hodsdon^  5 
Mass.  318,  Parsons,  J.,  said:  "  The  condition  of  the  bond  was 
variant  from  the  statute,  but  the  statute  does  not  prohibit  the 
taking  of  bond  in  any  other  form,  or  declare  such  bond  void. 
The  plaintiff,  under  color  of  the  bond  given,  has  obtained  pos- 
session of  the  goods,  and  it  would  be  unreasonable  to  allow  the 
makers  of  the  bond  to  dispute  it,  after  their  principal  has  had 
the  benefit  of  it."  And  the  rule  may  be  regarded  as  general, 
tliat  a  bond,  though  irregular  under  the  statutes,  is  not  for 
that  reason  void.  The  party  may  treat  it  as  a  voluntary  bond, 
and  recover  upon  it,  provided  its  terms  are  sufficient  to  sustain 
his  claim  ;2  and  unless  it  so  widely  departs  from  the  require- 
ments of  the  statute  as  to  defeat  the  objects,  it  may  still  be 
sufficient  to  support  an  action  against  its  makers. ^  Whether 
a  bond,  good  as  a  common  law  bond,  but  defective  as  a  statu- 
tory replevin  bond,  is  assignable,  under  a  statute  which  makes 
the  statutory  bond  assignable,  may  be  doubted.  The  party,  in 
seeking  to  recover  upon  it,  would  doubtless  be  required  to  con- 
form his  proceeding  to  his  common  law  rights.* 

§  406.  By  whom  it  must  be  executed.  The  bond  may  be  ex- 
ecuted by  the  plaintiff  in  person,  or  by  some  one  for  him,  who 
is  duly  authorized  to  sign  his  name  to  such  an  undertaking. 5 

§  407.  Bond  may  be  executed  by  a  stranger  to  the  suit. 
Or  it  may  sometimes  be  executed  by  a  stranger  to  the  suit, 
with  proper  securities  in  behalf  of  the  plaintiff".  In  some  of 
the  States  the  statutes  provide  that  the  plaintiff,  or  some  one 

'  Tuck  V.  Moses,  58  Me.  472 ;  Livingston  v.  Superior  Ct.  N.  T.,  10  "Wend. 
547. 

2  Branch  v.  Branch,  6  Fla.  315 ;  Stansfeld  v.  Hellawell,  11  E.  L.  &  Eq.  559 ; 
Claggett  V.  Richards,  45  N.  H.  360. 

»  Stevenson  v.  Miller,  2  Litt.  Rep.  (Ky.)  307;  Cobb  v.  Curts,  4  Litt.  Rep. 
235;  Fant  v.  Wilson,  3  Mon.  (Ky.)  342;  Hoy  v.  Rogers,  4  Mon.  (Ky.)  225; 
Roman  v.  Stratton,  2  Bibb.  (Ky.)  199;  Nunn  v.  Goodlett,  5  Eng.  (Ark.)  100; 
Fahnestock  v.  Gilhcim,  77  111.  637;  Jennison  v.  Haire,  29  Mich.  209. 

*  Austen  v.  Howard,  7  Taunt.  327. 

»  Howe  V.  Handley,  28  Me.  241;  Greeley  v.  Currier,  39  Me.  516;  Garlinc. 
Strickland,  27  Me.  44a. 


WHEN   IT   MAY    BE    AMENDED,  229 

in  Ins  behalf,  shall  execute  the  bond.  Under  this  provision,  it 
is  not  essential  that  the  plaintiff  should  appear  as  a  party  to 
it  in  any  way.  A  bond,  in  other  respects  formal  and  sufficient, 
made  by  his  agent  or  friend,  or  even  by  a  stranger,  in  his  be- 
half, would  be  a  compliance  with  such  a  statute. ^  When  the 
statutes,  however,  require  the  plaintiff  to  execute  the  bond,  it 
will  be  insufficient,  unless  made  by  him  either  personally  or  by 
his  attorney  duly  authorized. 

§  408.  How  executed.  It  must  be  executed  under  seal. 
An  instrument  not  under  seal  cannot  be  a  valid  replevin  bond.^ 
The  securities  may  be  released,  and  others  substituted,  by  leave 
of  the  court;  but  the  party  giving  the  bond  cannot,  by  a  deposit 
of  money,  release  the  securities.  ^ 

§  409.  When  it  may  be  amended.  The  court  may  allow 
amendment  to  the  bond  in  such  particulars  as  are  amendable. 
When  it  was  not  in  double  the  amount,  the  courc  permitted  a 
new  bond  to  be  filed. *  When  the  statute  required  two  secur- 
ities, and  the  bond  was  signed  by  but  one,  the  court  permitted 
another  bond,  with  proper  security  to  be  given.^  So,  when  it  ap- 
pears necessary  to  use  one  of  the  securities  as  a  witness,  the  court 
may  permit  a  new  bond,  with  other  securities,  to  be  substi- 
tuted.' When  the  securities  are  insolvent  at  the  time  of  the 
commencement  of  the  suit,  the  court  may  make  order  requir- 
ing good  security  to  be  furnished,  and  may  hold  the  defendant 
in  custody  until  he  shall  have  complied  with  the  order.'  A 
bond  executed  on  Sunday  is  void,8  under  a  statute  which  pro- 

1  Consult,  Branch  v.  Branch,  6  Fla.  315;  Stats,  of  111.,  Title  Replevin, 
§  10  See  Frci  v.  Vogel,  40  Mo.  149;  Statute  of  Michigan,  §  504;  Claflin 
V.  Thayer,  13  Gray,  (M:iss.)  459;  Kinney  v.  Mallory,  3  Ala.  620. 

■^  Lovejoy  v.  Bright,  8  Biackf.  (Ind.)  20G.  This  has  been  changed  by  stat- 
ute in  many  of  tlie  Slates.    See  Handley  v.  Hathaway,  4 T.  B.  Mon.  (Ky.)  554. 

8  Cummings  v.  Gann,  52  Pa.  St.  484. 

*  Where  the  appraisement  was  $330.20,  and  the  sheriff  made  oath  the 
20  cents  was  a  mistake,  and  the  bond  was  in  double  $320,  an  amendment 
of  the  recital  was  in  order.     Hammond  v.  Eaton,  15  Gray,  (Mass.)  186. 

5  Whaling  v.  Shales,  20  Wend.  673;  Smith  v.  McFall,  18  Wend.  533; 
Hawlcy  v.  Bates,  19  Wend  632;  Smith  ij.- Howard,  23  Ark.  203. 

6  Kendall  v.  Fitts,  2  Fost.  (N.  H.)  9. 

'  Cash  V.  Quenichctt,  5  Heisk.  (Tenn.)  738. 

•  Link  V.  Clemmens,  7  Biackf.  480. 


230  THE   BOND. 

hibits  common  labor.  But  where  the  statute  required  the 
execution  of  a  bond  within  twenty-four  hours,  and  the  replevin 
"was  on  Saturday,  Sunday  was  not  included  in  the  estimate  of 
time.i  One  partner  cannot  bind  his  co-partner  by  signing 
and  sealing  bond  in  partnership  name.^ 

§  410.  Defect  in  the  bond  —  when  and  how  taken  advantage 
of.  As  has  been  shown,  the  officer  executing  a  writ  of  replevin 
must  see  that  the  bond  is  properly  executed  and  delivered,  as 
required  by  the  statute,  or  he  will  be  liable  as  a  trespasser;-^ 
but  the  failure  of  the  sheriff  to  take  bond,  or  the  acceptance 
of  an  informal  or  insufficient  one,  must  betaken  advantage  of 
by  the  defendant  at  the  earliest  practicable  opportunity,*  as 
such  defective  bond  will  not  deprive  the  court  of  jurisdiction, 
nor  in  any  way  interfere  with  or  avoid  the  proceediug;^  and 
by  omitting  to  take  advantage  of  such  defect,  and  by  pleading 
to  the  merits,  the  defendant  will  be  presumed  to  have  waived 
his  objection,  and  will  not  usually  be  permitted  to  assert  and 
take  advantage  of  them  afterwards.  ^  When  the  bond  did  not 
name  the  security  in  the  body  of  it,  and  being  "  I  "  promise 
to  pay,  signed  by  the  principal  and  security,  it  was  held  valid 
as  against  the  signers.' 

§  411.  Requisites  of  the  bond.  The  bond  should  correctly 
describe  the  suit  in  which  it  is  given;  it  should  name  the  par- 
ties, especially  is  it  important  to  correctly  name  the  defendant 
from  whom  the  goods  are  to  be  taken;  otherwise  it  cannot  be 
told  for  whose  benefit  the  bond  is  given.     An  omission  in  this 

"  Link  V.  Clemmens,  7  Blackf.  480. 

'  Bulterfield  v.  Hemsley,  13  Gray,  236.  Compare  Judson  v.  Adams,  8 
Cush.  556. 

3  Dearborn  v.  KeHey,  3  Allen,  (Mass.)  426;  Nunn  v.  Goodlett,  5  Eng. 
(Ark.)  89;  Parker  v.  Hall,  55  Me.  363. 

«  Houghton  V.  Ware,  113  Mass.  49. 

»  Tuck  v.  Moses,  58  Me.  473;  Tripp  v.  Howe,  45  Vt.  524. 

«  Tripp.  •».  Howe,  45  Vt.  534;  Spencer  v.  Dickerson,  15  Ind.  368.  Where 
bond  was  with  a  single  security,  and  an  objection  to  it  therefore  would  have 
been  valid  if  made  in  apt  time,  yet,  being  allowed  to  run  to  a  subsequent 
term,  it  was  too  late.  Claflin  v.  Thayer,  13  Gray,  459;  Simonds  v.  Parker, 
1  Mot.  508.     It  is  too  late  after  a  verdict.     Rich  v.  Ryder,  105  Mass.  308. 

'  Clarke  v.  Bell,  3  Litt.  (Ky.)  164. 


CONDITIONS   SEPARATE   AND   INDEPENDENT.  231 

respect  is  fatal,  and  the  bond  void.^  It  ought  also  to  state  the 
court  in  which  the  suit  is  brought,  and  the  date  or  term  at 
which  the  suit  is  begun;  but  error  in  this  respect  is  not  fatal 
when  the  suit  and  property  are  so  described  that  they  can  readily 
be  identified.  2  Where  the  condition  was  to  appear  at  the  next 
term  of  the  county  court,  and  it  was  objected  that  there  was 
no  such  court,  it  was  held  that  the  objection  was  too  technical, 
and  the  words  were  held  to  mean  court  of  common  pleas. ^ 

§  412.  The  same.  It  ought  also  to  describe  the  goods  to  be 
replevied,  and  to  state  their  value.  An  omission  in  this  last 
respect  may  not  be  serious,  but  a  failure  to  describe  the  goods 
would  lead  to  great  embarrassments,  and  probably  render  the 
bond  objectionable.*  It  must  be  for  a  definite  sum,  stated  in 
dollars  or  some  denomination  of  money;  a  bond  in  "double 
the  value  of  the  goods  about  to  be  replevied"  is  not  sufH- 
cient.^  The  value  may  be  agreed  upon  by  the  parties,  and 
such  agreement  returned  by  the  officer.^ 

§  413.  The  conditions  separate  and  independent  of  each 
other.  The  bond  is  for  the  payment  of  the  penalty  mentioned 
therein  upon  conditions  which  have  already  been  stated.  Each 
of  these  conditions  is  a  separate  obligation,  distinct  from  all 
the  others,  and  for  a  failure  to  keep  any  one  of  them,  an  action 
may  be  sustained  for  the  full  penalty  of  the  bond,  even  though 
the  obligors  should  keep  all  the  others.'  The  rule  is  also 
well  settled  that  where  the  conditions  of  the  bond  are  sever- 
able, part  may  be  void,  while  the  remainder  may  be  valid.  If 
the  valid  and  void  portions  were  incapable  of  severance,  the 

«  Arter  v.  The  People,  54  111.  228;  Matthews  ti.  Storms,  72  111.  321. 

«  Branch  v.  Branch,  6  Fla.  315;  Graves  v.  Shoefelt,  60  III.  464;  Chadwick 
V.  Badger,  9  N.  H.  450. 

8  Arnold  v.  Allen,  8  Mass.  147. 

*  McDermott  v.  Doyle,  11  Mo.  443.     Contra,  Branch  v.  Branch,  6  Fla.  315. 

»  Bennett  v.  Allen,  80  Vt.  684;  Case  v.  Pettee,  5  Gray,  27;  Clark  v.  Conn. 
lliv.  R.  R.,  6  Gray,  363. 

«  Wolcott  V.  Mead,  13  Met.  516. 

'  Perreau  v.  Be  van,  5  B.  &  C.  (11  E.  C.  L.)  284;  Brown  v.  Parker,  5  Blackf. 
292;  Sopris  v.  Lilley,  2  Colorado,  49S;  Clark  v.  Norton,  6  Minn.  417;  Hall 
V.  Smith,  10  Iowa,  47;  Fullerton  v.  Miller,  22  Md.  5;  Persse  v.  Watrous,  30 
Conn.  146;  Pettygrove  v.  Hoyt,  2  Fairfield,  (Me.)  66;  Lambden  v.  Coaoway, 
5  Har.  (Del.)  1. 


232  THE   BOND. 

bond  would  be  wholly  void.  But  when  the  conditions  are 
distinct,  the  obligor  is  not  so  injured  by  what  is  merely  void 
that  he  can  make  use  of  it  to  protect  him  against  what  is 
valid.  1 

§  414.  The  condition  to  prosecute  without  delay.  If  the 
plaintiff  delay  to  prosecute  his  suit  for  any  unusual  or  unrea- 
sonable time,  without  the  defendant's  consent,  the  condition 
to  prosecute  without  delay  will  be  broken.^  Thus,  a  failure 
to  prosecute  for  two  years,  without  good  cause  shown,  was 
regarded  as  a  forfeiture  of  this  condition,  though  no  judgment 
of  nol  pros,  was  entered. ^  But  when  the  breach  assigned 
was  for  a  failure  to  prosecute  with  effect,  a  plea  that  the  suit 
was  still  pending  was  good,  as  the  condition  to  prosecute  with 
effect  is  not  broken  by  delay,  however  prolonged.  The  breach 
should  in  such  case  be  upon  the  condition  to  prosecute  with- 
out delay.* 

§  415.  To  prosecute  with  efifeet.  The  condition  to  prosecute 
with  effect  is  separate  and  absolute,  and  requires  the  plaintiff 
to  prosecute  the  suit  to  a  successful  issue. ^  And  if,  for  any 
cause,  the  plaintiff  fails  in  his  suit,  or  suffers  a  non-suit,  or 

'  Newman  v.  Newman,  4  Maul.  &  Selw.  70.  This  question  is  considered  in 
United  States  v.  Brown,  Gilpin  C.  C.  155.  See  Vroom  v.  Exrs.  of  Smitli,  2  Gr. 
(14  N.  J.  L.)  480;  Anderson  v.  Foster,  2  Bailey,  (S.  C.)  501 ;  Erlinger  v.  The 
People,  36  111.  458 ;  Balsley  v.  Hoffman,  13  Pa.  St.  607.  "  The  conditions  of 
the  bond  are  disjunctive.  Each  depends  only  on  itself,  and  the  breach  of 
any  one  of  the  separate  conditions  occasions  a  forfeiture  of  the  penalty, 
notwithstanding  all  the  others  may  have  been  kept."  BerghofF  ■«.  Heck- 
wolf,  26  Mo  513 ;  Persse  v.  Watrous,  30  Conn.  146 ;  Kimmel  lo.  Kint,  2  Watts, 
(Pa.)  432 ;  Humphrey  v.  Taggart,  38  111.  228 ;  Gibbs  v.  Bartlett,  2  W.  &  S.  (Pa.) 
33.  "  Where  one  of  the  conditions  is  void,  it  does  not  affect  the  others." 
Chafi'ee  v.  Sangston,  10  Watts,  (Pa.)  266.  This  has  been  the  rule  ever  since 
the  bond  has  been  used  in  replevin.  Pigot's  Case,  11  Co.  Rep.  27;  Vauglm 
V.  Norris,  Ca.  t.  H.  139;  Turnor  ^j.  Turner,  3  Brod.  «&  Bing.  112;  Harrison  v. 
Wardle,  5  Barn.  &  Adolph,  146;  Badlam  v.  Tucker,  1  Pick.  286;  Brown  v. 
Parker,  5  Blackf.  (Ind.)  292.     See  Dugan  v.  England,  Harper,  (S.  C.)  214. 

2  Daniels  v.  Patterson,  3  Comst.  (N.  Y.)  51. 

3  Axford  V.  Perrett,  4  Bing.  586.     See  Moore  v.  Bowmaker,  7  Taunt.  07. 

4  Brackenbury  v.  Pell,  12  East.  586;  Harrison  v.  Wardle,  5  B.  <fe  Adolph, 
146. 

6  Persse  ■».  Watrous,  30  Conn.  144;  Tummons  v.  Ogle,  37  E.  L.  &  Eq.  15; 
Humphrey  v.  Taggart,  38  111.  228;  Balsley  v.  Hoffman,  13  Pa.  St.  603. 


TO   PROSECUTE   WITH    EFFLCT.  233 

jndgment,  or  verdict,  against  liim,  it  is  a  breacli  of  tliis  con- 
dition for  whicli  an  action  maj  be  sustained  for  tlie  full  penalty 
of  the  bond.i  If  tlie  action  be  dismissed,  even  with  the  consent 
of  the  defendant,  it  is  a  clear  failure  to  prosecute  with  effect ;2 
but  consent  of  the  defendant  to  waive  any  of  his  rights  to 
damages,  or  to  return,  would  change  the  case.^  So  when  the 
defendant  pleaded  non  cepit,  and  the  plaintiff  afterward  was 
non-suited,  there  was  no  failure  to  prosecute  with  success.* 
Failure  to  prosecute  with  effect  constitutes  a  breach  of  condi- 
tion of  the  bond,  without  judgment  for  a  return, ^  and  such  a 

judgment  is  not  necessary  to  entitle  the  defendant  to  sustain 
an  action  for  a  failure  to  keep  this  condition.^ 

§  416.  The  same.  Wliat  is  prosecution  with  eSect.  Where 
the  defendant  pleads  non  cepit  only,  and  succeeds  upon  the 
issue  that  he  did  not  take  the  goods,  such  a  verdict  in  his  favor 
does  not  constitute  a  breach  of  the  condition  of  the  plaintiff's 
bond  to  prosecute  with  effect.  Instead  of  entitling  him  to  a 
judgment  for  a  return,  such  a  result  only  ratifies  his  renunci- 
ation of  the  property.''  The  statutory  form  of  the  bond  under 
discussion  differed  slightly  from  the  ordinary  replevin  bond, 
the  conditions  of  the  former  being,  "that  in  case  the  plaintiff 
failed  to  make  good  his  claim  to  the  property,"  etc.  The  court 
Bays,  "  the  primary  condition  of  the  bond,  that  which  is  the 
basis  of  liability  on  it,  is,  that  in  case  the  plaintiff  shall  fail 
to  make  good  his  claim  to  the  property,  he  will  re-deliver  the 
goods.  Whatever  absolves  him  from  this  condition  discharofes 
him  from  every  liability  on  his  bond."     Success  by  the  defend- 

1  M'Faiiand  u.  McNift,  10  Wend.  330;  Langdoc  v.  Parkinson,  2  Bradw. 
(111.)  136;  Morgan  v.  Griffiths,  7  Mod.  380;  Turnor  v.  Turner,  2  Bred.  & 
Bing.  107;  Perreau  v.  Be  van,  5  B.  «fc  C.  284;  Phillip  o.  Pierce,  3  Maul.  & 
Selw.  182;  Gould  v.  Warner,  3  Wend.  54;  Dias  v.  Freeman,  5  T.  R.  195  and 
104;  Humphrey  v.  Taggart,  38  111.  228;  Doogan  v.  Tyson,  6  Gill.  &  J.  (Md.) 
453;  Hansard  v.  Reed,  29  Mo.  473;  Berghoff  v.  Heckwolf,  26  Mo.  511. 

»  Stevison  v.  Earnest,  80  111.  513. 

3  Hall  V.  Smith,  10  Iowa,  4G. 

*  Cooper  V.  Brown,  7  Dana,  (Ky.)  333. 

»  EUioU  V.  Black,  45  Mo.  373;  Brown  v.  Parker,  5  Blackf.  (lad.)  292;  Dia3 
c.  Freeman,  5  Term.  R.  195  and  104. 

6  Sopris  V.  Lilley,  2  Colorado,  498. 

'  Ladd  V.  Prentice,  14  Conn.  116. 


234  THE   BOND. 

ant  on  the  simple  issue  of  non  cepit^  instead  of  a  breach  of 
the  bond,  is  an  effectual  defense  against  all  his  claims  under  it.* 

§  417.  Prosecution  in  inferior  court  not  sufficient  when  the 
case  is  appealed.  Prosecution  with  effect  in  the  inferior  court 
does  not  satisfy  this  condition  when  the  suit  is  removed  to  a 
superior  court.  The  plaintiff  is  bound  to  follow  and  prosecute 
it  to  a  successful  issue.  This  was  the  common  law  in  cases 
where  the  action  was  removed  by  a  writ  of  recordari^  or  by 
yone,^  and  is  the  rule  in  this  country  when  the  removal  is  by 
appeal  from  an  inferior  to  a  superior  court. ^  Where  the  par- 
ties stipulated  that  the  replevin  suit  should  be  dismissed,  and 
that  the  plaintiff  should  pay  the  defendant,  who  M'as  the  plain- 
tifl''s  landlord,  a  certain  sum,  and  that  each  should  pay  his 
own  cost,  this  stipulation  was  held  sufficient  evidence  of  a 
failure  to  prosecute  with  effect.'* 

§  418.  Death  of  party  pending  suit.  But  if  the  plaintiff 
die  pending  suit  the  condition  to  prosecute  with  effect  is  not 
broken,  the  reason  assigned  being  that  the  death  of  the  party 
renders  the  prosecution  of  the  replevin  suit  impossible,  and 
the  performance  of  the  condition  rendered  impossible  by  the 
act  of  God. 5  So  when  the  plaintiff  prosecutes  his  suit  until 
abated  by  the  death  of  the  defendant,  it  will  be  regarded  as  a 
compliance  with  the  conditions  to  prosecute  with  effect.^ 

§419.  The  condition  to  return.  The  condition  to  return 
the  goods,  if  return  be  awarded,  is  one  of  the  principal  —  per- 
haps the  principal  —  condition  of  the  bond.  The  obligation 
imposed  upon  the  makers  of  the  bond  by  this  condition  is  an 
active,  not  a  passive  duty.     It  requires  a  return  of  the  goods. 

'  See,  also,  Persse  v.  Watrouse,  30  Conn.  147. 

»  Lane  ®.  Foulk,  Comb.  228;  Gwillim  «.  Hoi  brook,  1  Bos.  &  Pul.  410; 
Vaughn  V.  Norris,  c.  t.  H.  137;  Blacket  v.  Cressop,  1  Lutw.  688;  Butcher  v. 
Porter,  1  Show,  400. 

2  Balsley  -o.  HofFiuaa,  13  Pa.  St.  603;  Gibbs  v.  Bartlett,  3  W.  &  S.  (Pa.)  34. 

<  Ilallett  X).  Mountstephen,  3  Dow.  «&  Ry.  343. 

»  Persse  ».  Watrous,  30  Conn.  147;  Green  ■».  Barker,  14  Conn.  431;  Par. 
sons  V.  Williams,  9  Conn.  236;  Burkle  «.  Luce,  1  Comst.  (N.  Y.)  163;  Burkle 
«.  Luce,  6  Hill,  (N.  Y.)  558;  Morris -y.  Mathews.  3  Ad.  &  El.  (n.  s.)  297. 

*  Badlara  t.  Tucker,  1  Pick.  384.  Such  was  the  law  in  England.  Orraand 
u.  Brierly,  Carth.  519;  Bacon  Ab.  title  Replevin,  D. 


OFFER   TO    RETURN    NOT   A    PERFORMANCE.  235 

The  object  is  to  secure  a  prompt  restoration  to  the  defendant 
of  the  goods  which  have  been  taken  from  him  upon  the  writ. 
It  is  not  simply  a  condition  to  surrender  tlie  goods  to  an  offi- 
cer upon  a  writ  of  return,  or  that  the  property  may  be  extorted 
from  the  makers  of  the  bond  on  such  process.  To  a  suit  for 
a  faihire  to  keep  this  condition  it  is  no  defense  to  say  that  the 
sheriff  did  not  take  the  property  when  he  could.  ^  A  judg- 
ment for  a  return  not  complied  with  is  a  breach  of  this  condi- 
tion ;3  but  where  tlie  condition  is  to  make  return  if  return  be 
awarded  the  obligors  are  not  guilty  of  a  breach  of  this  con- 
dition unless  there  be  a  judgment  for  a  return.^  The  condi- 
tion to  make  return  is  performed  if  the  plaintiff  in  replevin 
restore  the  goods  seasonably  after  the  return  is  awarded ;*  or 
if  the  goods  are  taken  on  a  writ  of  return  by  the  officer,  it  is 
a  compliance  with  the  condition. ^  To  an  action  on  a  bond 
the  defendant  pleaded  that  one  of  the  defendants  forcibly  took 
the  possession  from  him.  Held,  no  defense,  though  it  might 
be  permitted  to  go  in,  in  mitigaton  of  damages.^ 

§  420.  Offer  to  return  unaccompanied  by  a  tender  not  a 
performance.  An  offer  to  return  unaccompanied  by  any  ten- 
der of  the  goods  is  not  a  performance  of  this  condition.  When 
the  defendant  in  a  suit  on  a  bond  attempted  to  show  that  he 
offered  to  return  the  goods  to  the  sherifi,  and  that  the  latter 
refused  to  accept  them  because  he  had  been  directed  not  to  do 
so  by  the  attorney;  held,  no  proof  of  a  tender,  and  no  defense  to 
suit  on  the  bond.'  It  would  seem  from  this  case  that  an  actual 
tender  of  the  goods  was  necessary  to  performance  of  the  con- 
dition to  return. 

'  Jennison  ■».  Haire,  39  Mich.  209;  Burkle  v.  Luce,  6  Hill,  558;  Peck  v. 
Wilson,  22  111.  206.  See  Carrico  v.  Taylor,  3  Dana,  (Ky.)  33;  Cooper  v. 
Brown,  7  Dana,  (Ky.)  333 ;  Cooper  v.  Peck,  22  Ala.  406 ;  Cushendeu  v.  Har- 
man,  2  Tyler,  (Vt.)  431. 

2  Smith  V.  Pries,  21  111.  636 ;  Davis  v.  Harding,  3  Allen,  302.  Compare 
Cowdin  V.  Stanton,  12  Wend.  120. 

'  Clark  V.  Norton,  6  Minn.  415;  Ladd  v.  Prentice,  14  Conn.  117. 

<  Sopris  V.  Lilley,  2  Col.  498.  See  Way  v.  Barnard,  36  VL  370 ;  Walbridge 
V.  Shaw,  7  Cush.  5G0;  Cook  v.  Lothrop,  18  Me.  260. 

»  Carrico  v.  Taylor,  3  Dana  (Ky.)  33 ;  HaiTod  v.  Hill,  2  lb.  165. 

6  Story  V.  O'Dea,  23  Ind.  326. 

'  Schrader  v.  Wolfliu,  21  Ind.  238. 


236  THE   BOND. 

§  421.  The  condition  to  return  requires  the  return  of  the 
identical  goods.  Tiiis  condition  also  requires  the  return  of  the 
identical  goods  taken;  the  substitution  of  other  goods  of  like 
description  and  value  is  not  a  compliance  with  the  bond. 

§  422.  And  in  as  good  order  as  when  taken.  It  is  also  an 
implied  obligation  that  tlie  goods  shall  be  in  as  good  order  and 
condition  as  when  taken.  When  an  express  provision  of  the 
statute  to  this  effect  was  ommited  in  a  revision  by  the  legis- 
lature, it  was  not  regarded  as  changing  the  law.^  But  if  the 
property  has  in  fact  been  injured  while  in  the  plaintiff's  pos- 
session, that  fact  will  not  absolve  the  defendant  from  the  duty 
of  receiving  it  in  its  damaged  condition.  The  judgment  for  a 
return  does  not  leave  it  at  the  option  of  the  defendant  to  accept 
or  refuse  and  demand  the  value.  The  depreciation  is,  however, 
to  be  made  good,  and  the  party  may  receive  full  indemnity  by 
suit  on  the  bond.^ 

§  423.  Judgment  for  a  return  a  breach  of  the  condition. 
Judgment  for  a  return  having  been  given,  a  failure  of  the 
plaintifi  to  make  it  is  a  breach  of  the  condition,  and  suit  may 
be  brought  at  once,  without  demand. ^  Neither  is  it  necessary, 
in  the  absence  of  statutory  requirement,  to  have  a  writ  of  re- 
turn before  suit  on  the  bond.  It  is  sufiicient  that  the  return 
was  adjudged  and  not  made.-* 

§  424.  The  bond  only  relates  to  claims  in  the  suit  in  which 
it  is  given.  The  bond  is  only  for  the  indemnity  of  the  party 
for  damages  occasioned  by  the  replevin  suit.  A  suit  in  replevin 
was  begun  and  dismissed.  The  defendant  then  brought  re- 
plevin for  the  property,  and  recovered  judgment  and  damages 

»  Parker  v.  Simonds,  8  Met.  211 ;  Gibbs  v.  Bartlett,  2  W.  &  S.  (Pa.)  34. 

«  Allen  V.  Fox,  51  N.  Y.  5G2.     But  see  Douglass  v.  Doui^lass,  21.  Wall.  98. 

8  Wright  V.  Quirk,  105  Mass.  45;  Cook  v.  Lothrop,  18  Me.  2G0;  Parker  v. 
Simonds,  8  Mot.  205 ;  Persse  v.  Watrous,  30  Conn.  148. 

4  Peck  ■!).  Wilson,  23  111.206.  Plaintiff  may  prove  it.  Smith  v.  Pries, 
21  111.  056.  See  Piobertson  v.  Davidson,  14  Minn.  554;  M'Farland  v.  M'Nitt, 
10  Wend.  330;  Gould  v.  Warner,  3  Wend.  54;  Knapp  v.  Colburn,  4  Wend. 
618;  Hunter  v.  Sherman,  2  Scam.  544.  Contra,  suit  on  the  bond  for  breach 
of  the  condition  to  return  cannot  be  maintained  without  a  writ  of  return 
unsatisfied.  Cowden  v.  Pease,  10  Wend.  334;  Cowdin  v.  Stanton,  12  Wend. 
120;  Pemblet).  Clifford,  2  McCord,  (S.  C.)  31;  Pemble  ».  Clifford,  3  Mc^ord, 
(S.  C.)  34;  Shaw  «.  Tobias,  3  Comst.  188. 


GENERAL    PE1NCIPLE3.  237 

to  the  amount  of  $270.  To  satisfy  these  daraao^es,  she  bronsht 
suit  on  the  bond  given  to  her  in  the  original  suit.  Ileld^  the 
bond  was  for  the  special  purpose  of  indeinifjing  her  for  such 
damages  as  might  be  adjudged  in  that  suit;  not  for  damages 
in  a  subsequent  one.  The  suit  in  which  the  bond  was  given 
was  dismissed,  with  no  judgment  in  her  favor,  and  upon  such 
claim  no  recovery  could  be  had.i 

§  425.  Actual  delivery  of  the  goods  on  the  writ  precedes 
liability  on  the  bond.  The  law  in  many  States  permits  tlie  de- 
fendant to  retain  the  property,  upon  giving  bond  to  abide  the 
order  of  the  court.  In  suit  on  a  bond  in  such  a  case  the  plain- 
tiff must  allege  and  prove  a  delivery  of  the  property  to  the 
plaintiff  in  replevin.  The  delivery  must  precede  the  liability 
on  the  bond. 2 

§  426.  Actual  return  in  as  good  order  a  compliance  with 
this  condition.  An  actual  return  of  the  goods  in  proper  time 
and  order  is  a  compliance  with  this  condition.  So,  also,  when 
property  is  replevied  from  the  sheriff  and  comes  back  into  his 
hands  by  seizure  on  another  execution,  and  the  plaintiff  in 
replevin  requests  him  to  hold  it  on  the  first.  This  is  equiva- 
lent to  a  return;  the  condition  for  a  return  is  fulfilled. ^  And 
there  are  many  cases  which  recognize  the  continuing  lien  of 
an  execution,  (when  goods  seized  on  execution  have  been 
replevied,)  in  case  the  plaintiff  in  the  replevin  has  failed  in 
his  suit.* 

§  427.  General  principles  governing  the  construction  of  the 
bond.  The  principles  which  govern  in  the  construction  of  a 
replevin  bond  are  similar  to  those  which  apply  to  other  bonds. 
When  the  terms  of  the  instrument  render  it  possible,  the 
court  will  always  adopt  a  construction  which  gives  to  the  bond 
some  effect,  rather  than  one  which  annuls  it.^     The  court  will 

»  Boyer  v.  Fowler,  1  Wasb.  Ter.  119. 

2  Nickerson  v.  Chatterton,  7  Cal.  570.     See  Clary  v.  Rolland,  24  Cal.  147. 

8  Hunt  ®.  Robinson,  11  Cal.  26-^. 

«  Caldwell  v.  Gans,  1  Blake,  (Men.)  581.  See  Cook  s.  Lotbrop,  18  Me. 
260;  Burkle  v.  Luse.  1  Comst.  163;  Evans  «.  King,  7  Mo.  411 ;  Ilagan  v. 
Lucas,  10  Pet.  (U.  S.)400;  Lockwoodu.  Perry,  9  Met.  440;  M'Rae  v.  M'Lean, 
3  Port.  (Ala.)  138. 

*  2  Bla.  Com.  179 ;  Mitchell  v.  Ingram,  38  Ala.  395.    So  of  deeds.    Good- 


238  THE    BOND. 

also  look  to  the  manifest  intention  of  the  parties,  and  carry  it 
out,  if  that  be  possible,  from  the  terms  of  the  instrument. ^ 
"Words  used  are  to  receive  their  ordinary  popular  meaning.^ 
The  object  of  the  bond  is  to  provide  security  to  the  officer  and 
indemnity  to  the  defendant.  The  action  on  the  bond  ought  to 
be  conducted  with  these  ends  in  view,  to  best  subserve  the 
principles  of  justice,  having  due  regard  to  the  decision  in  the 
replevin  suit,  and  the  character  and  condition  of  tlie  bond,  and 
the  breaches  assigned.  When  the  action  of  replevin  was  dis- 
missed, and  the  defendants  in  the  suit  on  the  bond  were 
defaulted,  the  court,  on  a  writ  of  inquiry  to  assess  damages, 
permitted  them  to  show,  in  mitigation,  that  tliey  were  the  own- 
ers of  the  property. 3  Tliis  rule  has  been  engrafted  into  the 
statutes  of  some  States,  and  adopted  by  construction  in  others.* 

§  428.  Right  of  action  accrues  upon  a  failure  to  keep  any 
of  the  conditions.  The  right  of  action  on  the  bond  accrues 
whenever  the  plaintiff  in  the  replevin  suit  fails  to  keep  any 
of  the  conditions.  Thus,  when  the  conditions  of  the  bond  are 
that  the  plaintiff  shall  prosecute  his  suit  with  effect,  and  with- 
out delay,  and  return  the  goods,  if  return  be  awarded,  the  suit 
on  the  bond  may  be  sustained  when  the  plaintiff  fails  in  his 
action,  even  though  there  be  no  award  of  a  return. ^ 

§  429.  Rights  of  the  soeuritios.  Tlie  securities  may,  in  all 
cases,  stand  upon  the  exact  terms  of  their  contract. ^  They 
are  liable  for  their  express  covenants,  and  no  more.  Tiiey  are 
responsible  for  the  performance  of  what  their  principal  is  law- 
fully bound  to  do,  according  to  the  condition  of  the  bond. 
The  court  cannot  enlarge  or  vary  the  conditions  of  the  contract. 

title  V.  Bailey,  2  Cowper,  600;  Archibald  v.  Thomas,  3  Cowen,  281;  Wolfe 
V.  McClure,  79  111.  5G4. 
'lb. 

*  Hawes  v.  Smith,  3  Fairfield,  (Me.)  429. 

3  Belt  V.  Worthington.  3  Gill.  &  J.  (Md.)  247;  Stockwell  v.  Byrne,  22  Ind. 
9;  Doogan  v.  Tyson,  6  Gill.  &  J.  (Md.)  453;  Davis  v.  Harding,  3  Allen,  302. 

*  Statutes  of  111. 

«  Browne. Parker. 5  Blackf  ^Ind.)291;  Potterc.  James,  7  R.  1.312;  Roman 
V.  Stratton.  2  Bibb.  (Ky.)  199. 

«  FuUerton  B.Miller,  22  Md.  5;  Tarpey  v.  Shillenberger,  10  Cal.  390; 
Clary  v.  Rolland,  24  Cal.  147;  Clark  v.  Norton,  6  Minn.  413. 


EIGHTS   OF    THE   SECURITIES.  239 

Thus,  where  the  condition  was  to  prosecute  the  suit  to  linal 
judgment,  and  to  pay  such  damages  and  costs  as  the  defend- 
ant should  recover,  and  also  restore  the  property  in  case  that 
should  be  the  judgment  of  the  court,  the  defendant  omitted  to 
pray  for  a  return,  and  had  judgment  for  costs  only,  he  after- 
wards brought  suit  on  the  bond  for  a  failure  to  return,  and  it 
was  held  he  could  not  recover,  no  return  having  been  adjudged, 
that  condition  was  not  broken. ^  Where  a  return  of  the  prop- 
erty is  awarded,  the  securities  have  a  right  to  make  it,  if  they 
see  fit,  in  the  discharge  of  their  obligation. 2  "Where  the  suit 
was  dismissed  before  the  defendant  had  an  opportunity  to  claim 
a  return,  the  fact  that  one  had  not  been  claimed  could  not  be 
made  use  of  to  defeat  the  suit  on  the  bond.^  The  suit,  in  such 
case  would  properly  have  been  on  the  failure  to  prosecute 
with  effect. 

§430.  The  same.  Illustrations.  Where  the  condition  was 
to  pay  such  damages  as  should  be  adjudged,  the  bondsmen 
were  not  liable  for  those  which  accrued  prior  to  judgment  for 
a  return,  unless  they  were  adjudged  against  their  principal  in 
the  replevin  suit.^  The  principles  which  govern  in  such  cases 
find  apt  illustrations  in  cases  other  than  in  those  on  replevin 
bonds.  5  When  the  statute  under  which  an  appeal  was  taken 
required  a  bond  to  pay  whatever  judgment  might  be  rendered 
upon  the  dismissal  or  trial  of  the  appeal,  and  the  bond  sued 
on  omitted  the  words  "c/*  trial,''''  the  court  said:  "The  point 
is,  can  the  obligors  be  held  responsible  by  implication  bej^ond 
the  express  terms  of  the  bond?"  Held,  that  though  not  con- 
forming to  the  statutory  form,  tlie  bond  was  good,  as  a  volun- 
tary one;  that  the  obligor  could  not  be  bound  for  anything 

*  Pettygrove  ?).  Hoyt,  11  Maine,  60;  Clark  v.  Norton,  6  Minn.  413.  See 
Branscombe  v.  Scarbrough,  6  Adol.  &  E.  (n.  s.)  13;  Chambers  v.  Waters,  7 
Cal.  390;  Mitcluim  v.  Stanton,  49  Cal.  304;  Collins?;.  Hough,  26  Mo.  150; 
Balsiey  -o.  Hoffman,  13  Pa.  St.  608;  Miller  «.  Foutz,  2  Yeates,  (Pa.)  418; 
Nickerson  v.  Chatterton,  7  Cal.  568. 

s  Kimmel  v.  Kint,  2  Watts,  432. 
2  Mills  v.  Gleason,  21  Cal.  275. 

*  Sopris  V.  Lilley,  2  Col.  498;  Keuley  t.  Commonwealth,  6  B.  Mon.  (Ky.) 
583. 

»  Wolfe  V.  McClure,  79  111.  564. 


210  THE   BOND. 

beyond  the  letter  of  the  contract. ^  "When  the  bond  was  given 
in  a  justice  court,  and  the  condition  was  for  a  return  of  the 
property,  if  return  be  adjudged  by  S(Z^  court,  etc.:  Held,  that 
under  this  form  tlie  securities  had  limited  their  liability,  and 
that  unless  the  return  was  awarded  by  the  justice,  the  securi- 
ties were  not  liable,  even  though  a  return  had  been  awarded 
by  the  county  court.^ 

§  431.  The  same.  A  judgment  irregularly  entered  for  the 
value  of  the  property  replevied,  without  an  order  for  a  return, 
does  not  change  or  affect  the  liability  of  the  securities  upon 
the  condition  for  a  return,  though  an  order  for  a  return  may 
not  be  essential  to  entitle  the  party  to  an  action  upon  the 
bond  for  a  breach  of  other  conditions.' 

§  432.  Any  material  alteration  in  the  bond  avoids  it.  Any 
material  alteration  of  the  bond  without  the  consent  of  the 
securities,  will  avoid  it.  Thus,  when  the  principal  erased  his 
name  from  a  bond  to  a  United  States  Marshal  without  tiie 
consent  of  his  securities,  but  with  the  consent  of  the  marshal, 
it  operated  as  a  release  of  the  securities.*  In  case  a  new 
defendant  is  substituted  in  the  suit,  the  securities  are  under 
no  obligation  to  liim;^  but  the  substitution,  by  the  court  of 
the  real  defendant  (a  corporation,)  in  place  of  one  of  its  agents, 
will  not  release  the  securities.^  The  securities  are  not  liable 
for  a  greater  sum  than  the  penalty  of  the  bond  and  costs,  even 
if  the  damages  should  exceed  that  amount,''  neither  are  they 
liable  for  costs  of  the  replevin  suit  unless  the  bond  expressly 
so  provides,  or  some  statutory  liability  attaches. ^ 

§  433.  The  same.  Security  bound  by  acts  of  the  principal. 
Nevertheless,  the  securities  are  bound  by  all  the  steps  which 
their  principal  may  take  in  good  faith  for  the  success  of  his 
suit  in  court,  and  are  bound  by  the  result  of  that  suit.     If  the 

'  Young  v.  Ma<!on,  3  Gilm.  (111.)  57. 

2  Mitchura  v.  Stanton,  49  Cal.  304. 

*  Mason  v.  Richards,  13  Iowa,  74. 

4  Martin  «.  Tliomas,  24  How.  (U.  S.)  316. 

»  Smith  V.  Roby,  6  Ileisk.  (Teun.)  547. 

«  Hanna  v.  International  Petroleum  Co.,  23  O.  St.  625. 

'  Fraser  v.  Little,  13  Mich.  195 ;  Nickerson  v.  Chatterton,  7  Cal.  571. 

«  Morrow  v.  Shepherd,  9  Mo.  216. 


TECHNICAL   DEFENSES    NOT   FAVORED.  241 

court  have  jurisdiction,  the  securities  are  bound  by  such  order 
as  it  may  make  in  the  case,  it  being  the  essence  of  the  contract 
that  the  security  is  answerable  for  his  principal's  conduct  in 
the  suit  before  judgment,  and  for  his  action  afterwards  within 
the  scope  of  the  bond.^ 

§  434.  But  a  settlement  does  not  bind  nor  discharge  them. 
A  settlement  or  adjustment  of  the  suit  by  agreement  of  the 
parties,  without  the  consent  of  the  securities,  will  not  bind 
them,  nor  will  it  necessarily  release  them  from  their  obliga- 
tions.3  "Where  it  was  stipulated  of  record  that  all  proceedings 
in  replevin  should  cease,  that  the  plaintiff  should  pay  a  cer- 
tain sum,  and  that  the  bond  should  stand  for  security;  heldy 
that  this  was  sufficient  evidence  of  a  failure  to  prosecute,  and 
that  the  securities  were  liable  though  not  bound  by  the  stipu- 
lation.3 

§  435.  Submission  to  arbitration  does  not  bind  security. 
So  a  submission  to  arbitration  by  consent  of  the  parties  and 
without  the  consent  of  the  securities,  will  release  them;  they 
were  bound  that  the  plaintiff  should  abide  all  orders  of  the 
court  properly  made,  but  they  were  not  bound  by  the  orders 
of  another  tribunal  to  which  the  case  is  submitted  by  agree- 
ment.* 

§  436.  Technical  defenses  to  bond  not  favored  Tlie  gen- 
eral rule  is  well  settled  that  the  plaintiff  in  replevin  who  has 
had  the  property  delivered  to  him  on  his  writ,  cannot  dispute 
the  validity  of  the  bond  on  any  mere  technical  grounds,  or  for 
any  failure  to  comply  with  the  statutory  process  as  to  the 
manner  of  its  execution.  The  rule  in  all  such  cases  seems  to 
be  based  on  the  idea  that  the  party  who  has  obtained  delivery 
of  the  property  by  virtue  of  his  suit,  and  by  filing  his  bond, 
has  had  all  the  benefit  which  would  accrue  if  the  bond  had  been 
formal,  and  is  estopped  from  questioning  its  validity  on  the 

1  Pirkins  v.  Rudolph,  36  111.  310;  Burrall  v.  Vanderbilt,  1  Bos.  (N.  Y.)  637. 

«  Moore  v.  Bowmaker,  (1  E.  C.  L.)  6  Taunt.  379;  Same  v.  Same,  7  Taunt. 
97;  Aldridge  v.  Harper,  10  Bing.  118;  Harrison  v.  Wilkin,  69  N.  Y.  413; 
Coleman  v.  Wade,  2  Seld.  (N.  Y.)  44. 

3  Hallett  v.  Mountstephen,  2  Dow.  &  Ry.  348. 

*  Pirkins  v.  Rudolph,  36  111.  307.  Compare  Leighton  v.  Brown,  98  Mass. 
516. 

16 


242  THE   BOND. 

ground  of  formal  or  teclmical  defects.  Tlie  defendant  cannot 
be  allowed  to  plead  that  the  bond  was  for  ease  and  favor,  and 
unconstitutional.  1  In  Morse  v.  Hodsdon^  5  Mass.  314,  and 
in  Simonds  v.  ParJcer^  1  Met.  514,  the  rule  is  strongly  laid 
down  that  when  the  bond,  under  which  he  has  obtained  the 
property,  has  been  voluntarily  executed  by  the  plaintiff,  he 
can  not  avoid  it,  on  the  ground  that  it  does  not  conform  to 
the  statutory  requirements.^  So,  error  in  recital  of  the  date 
of  the  commencement  of  the  suit  in  replevin  is  immaterial, 
when  the  suit  and  the  property  are  sufficiently  described  to 
indicate  the  suit  which  was  intended.  Where  the  recital  was 
that  the  suit  was  commenced  on  or  about  the  3d  day  of  August, 
while  the  transcript  showed  that  it  was  commenced  on  the 
20th  day  of  August,  held  immaterial.* 

§  437.  The  same.  The  courts  have  ever  been  inclined  to 
hold  the  obligors  on  the  bond  to  a  strict  liability.  "When  it 
has  been  given  and  the  property  taken,  no  technical  defects 
not  going  to  the  substance  of  the  contract  will  be  permitted 
to  excuse  the  makers,  neither  will  a  failure  of  the  defendant 
to  take  advantage  of  such  defects  in  the  replevin  suit  neces- 
sarily prevent  him  from  having  his  remedy  upon  the  bond.'* 
"When  the  bond  is  given  with  one  security,  and  the  statute 
requires  two,  it  may,  nevertheless,  be  enforced,  though  not 
such  a  bond  as  the  plaintiff  had  a  right  to  demand. ^  Where 
the  signature  of  one  of  the  securities  was  a  forgery,  the  bond 
■was  not  for  that  reason  void  against  the  other ;6  but  perhaps 
he  might  have  shown  that  the  bond  was  delivered  in  escrow  to 

'  Compare  "Weaver  v.  Field,  1  Blackf.  335;  Magruder  v.  Marshall,  1 
Blackf.  333;  Strong  v.  Daniel,  5  Ind.  348.  See,  also,  Parker  v.  Simonds,  8 
Met.  211 ;  Wolfe  v.  McClure,  79  111.  564;  Gordon  v.  Jenney,  IG  Mass.  465. 
Objection  that  the  condition  was  to  appear  at  county  court,  when  there 
■was  no  such  court,  was  overruled;  the  judges  holding  that  the  court  of 
common  pleas  was  intended.     Arnold  v.  Allen,  8  Mass.  140. 

2  But,  see  Purple  v.  Purple,  5  Pick.  226. 

3  Graves  v.  Shoefelt,  60  111.  464.  Bond  adjudged  void  is  no  bar  to  an 
action  on  the  case  for  the  value  of  the  goods.  Magill  v.  Casey,  1  D.iy, 
(Conn.)  13. 

*  O'Grady  v.  Keyes,  1  Allen,  (Mass.)  284. 

»  Wolcott  V.  Mead,  12  Met.  518;  Shaw  v.  Tobias,  3  Comst.  (N.  Y.)  193. 

'  Bigelow  V.  Comegys,  5  Ohio  St.  256. 


INTENT   ■WILL    GOVESN.  243 

be  signed  by  the  others  if  such  was  the  fact.  "When  the  bond 
is  for  less  than  double  the  vahie  of  the  property,  (as  required 
by  the  statute,)  it  is  not  therefore  void;  defendant  may  waive 
the  defects  and  accept  it.^  When  the  securities  were  excepted 
to  by  the  defendant  under  a  statute  authorizing  such  excep- 
tion, and  tliey  failed  to  justify;  that  fact  does  not  relieve  them 
of  their  liability,  though  perhaps  the  substitution  of  new 
securities  under  such  circumstances  would. 2  Where  the  prin- 
cipal agreeed  to  give  time  or  to  stay  execution,  such  agreement 
did  not  release  the  securities  unless  the  agreement  created  an 
absolute  disability  on  the  part  of  the  payee  to  proceed.' 
Where  the  plaintiff  in  the  replevin  suit  has  obtained  posses- 
sion of  the  property  under  the  writ,  neither  he  nor  his  secur- 
ities can  be  permitted  to  allege  in  an  action  on  the  bond  that 
no  suit  in  replevin  was  pending,  because  no  summons  was 
issued.* 

§  438.  The  liability  of  a  guardian  personal.  Where  a  guar- 
dian sued  out  a  writ  of  replevin  for  goods  belonging  to  his 
ward,  and  gave  bond  in  his  own  name,  he  was  held  individually 
liable,  and  could  not  set  up  his  guardianship  to  defeat  the 
suit.'* 

§  439.  Where  the  words  are  ambiguous,  the  intent  will 
govern.  When  the  words  of  the  bond  are  not  explicit,  or,  if 
construed  literally,  would  mean  nothing,  they  must  be  con- 
strued with  reference  to  the  intent  of  the  parties,^  and  if  such 
intent  can  be  gathered  from  the  terms  of  the  bond  and  the 
situation  of  the  parties,  it  will  control.  When  the  bond  was 
that  if  Norths  (plaintiff,)  prosecute,  etc.,  or  in  case  of  failure 
shall  pay  such  damages  as  the  said  North  shall  recover,  etc., 
?ield,  that  this  must  be  regarded  as  a  clerical  error,  the  pre- 
sumption being  that  the  bond  was  given  in  good  faith,  and 
such  a  construction  should  be  given  as  would  render  it  avail- 

1  Rodesbaugh  v.  Cady,  1  West  L.  M.  (Ohio,)  599. 

'  Van  Duyne  v.  Coope,  1  Hill,  557 ;  Decker  v.  Anderson,  39  Barb.  347. 

3  Tousey  v.  Bishop,  22  Iowa,  178. 

*  Reeves  v.  Reeves,  33  Mo.  28;  Sammons  v.  Newman,  27  Ind.  508. 

'  Oliver  v.  Townsend,  16  Iowa,  430. 

«  Teall  V.  Van  Wyck,  10  Barb.  377. 


244  THE   BOND. 

able  for  the  purpose  for  which  it  was  intended. *  When  the 
condition  of  the  bond  was  that  it  should  be  void  if  the  obligor 
should  "no^"  pay,  etc.,  the  palpable  error  in  the  introduction 
of  this  word  was  not  permitted  to  defeat  what  must  have 
been  the  true  intent  of  the  parties. ^  So  wlien  the  word 
"  pounds  "  was  omitted,  Lord  Tentkrton  said:  "  The  bond  was 
intended  to  secure  various  sums  stated  in  the  recitals,  in  pounds 
sterling,  so  I  cannot  doubt  the  obligor  should  be  held  to  pav 
pounds  sterling  on  this  bond."^  Wiien  the  bond  was  signed 
by  plaintiff  in  replevin  after  the  writ  was  served,  he  will  not 
be  permitted  to  set  that  up  to  defeat  his  own  bond.*  All  these 
cases  proceed  upon  the  ground  that  the  plaintiff  ought  not  to 
be  suffered  to  avail  himself  of  the  writ  to  obtain  the  goods, 
and  then  be  relieved  of  the  obligation  to  respond,  unless  the 
error  be  fundamental. ^  But  when  the  bond  did  not  contain 
the  name  of  the  defendant  in  the  suit,  it  was  void,  and  the 
defect  could  not  be  cured  by  averment  or  proof.  Thus,  when 
suit  was  brought  against  the  sheriff  for  a  failure  to  take  bond 
as  required  by  the  statute,  the  defendant  pleaded  that  he  did 
take  bond,  which  he  set  out  at  length,  but  the  bond  set  out 
failed  to  show  that  the  defendant's  name  was  inserted  therein, 
or  that  any  language  was  used  from  which  it  could  be  ascer- 
tained in  what  suit  the  bond  was  given.  Demurrer  to  the  plea 
was  properly  sustained.^ 

§  440.  Proceedings  on  the  bond  governed  by  statute.  Pro- 
vision is  made  in  some  of  the  States  for  a  summary  proceeding"' 

'  Green  v.  "Walker,  37  Me.  27.  See  Butler  v.  Wigge,  1  Saund.  65 ;  Waiigh 
V.  Bussel,  5  Taunt.  707. 

s  Bache  v.  Proctor,  Doug.  (Eng.)  367. 
8  Coles  V.  Hulme,  8  Barn.  &  Cress.  568. 

*  Cady  V.  Eggleston,  11  Mass.  3S5;  Nunn  v.  Goodlett,  5  Eng.  (Ark.)  100; 
Reeves  v.  Reeves,  33  Mo.  28. 

*  Buck  «.  Lewis,  9  Minn.  317;  Jennison  v.  Haire,  29  Mich.  214;  Decker 
V.  Judson,  16  N.  Y.  439 ;  Shaw  v.  Tobias,  3  Comst.  192 ;  Moors  v.  Parker,  3 
Mass.  310. 

*  Arter  v.  The  People,  etc.,  54  111.  228.  This  case  was  subsequently  cited 
and  approved  in  Matthews  v.  Storms,  72  111.  321.  See  Smith  v.  Roby,  6 
Heisk.  549. 

■"  Stat.  Missouri.  Contra,  see  Gay  v.  Morgan,  4  Bush.  (Ky.)  606 ;  Hurd  v. 
Gallaher,  14  Iowa,  394. 


ASSIGNMENT   OF   THE   BREACHES.  245 

on  the  bond.  In  Wisconsin,  the  securities  are  so  far  regarded 
as  parties  to  the  suit  as  to  authorize  judgment  against  them 
in  the  replevin  proceedings*/  and  the  obligee  may  sue  in  the 
name  of  the  sheriff  for  his  use.^  These  proceedings  are  gov- 
erned by  the  local  law,  and  can  only  be  resorted  to  when  the 
bond  is  in  strict  conformity  thereto.' 

§  441.  Debt  a  proper  form  of  action  thereon.  Debt  is  a 
proper  form  of  action  on  a  replevin  bond  in  States  wliere  the 
distinction  between  actions  is  preserved.*  The  usual  form  of 
declaration  in  debt  upon  a  penal  bond  will  be  sufficient  with 
the  assignment  of  such  breaches  of  the  conditions  as  the 
pleader  desires  and  expects  to  sustain  by  proof.  The  assign- 
ment of  the  breaches  is  simply  a  statement  that  the  defendant 
has  not  performed  the  conditions  which  were  essential  to  be 
kept  to  excuse  the  obligors  from  the  payment  of  the  penal 
sum  named  in  the  bond.  The  breaches  need  not  be  assigned 
in  broader  terms  than  the  conditions. ^ 

§  442.  Assignment  of  the  breaches.  Keither  is  the  assign- 
ment of  the  breach  required  to  be  in  any  formal  or  technical 
manner.  An  assignment  which  sufRciently  shows  that  the 
obligors  have  not  kept  one  or  more  of  the  conditions  is  suf- 
ficient. Thus,  when  the  condition  was  to  prosecute  the  suit 
with  effect  an  assignment  that  the  defendant  did  not  prosecute 
the  replevin  suit  with  effect,  but  failed  so  to  do,  in  the  words 
of  the  condition  will  be  sufhcient.^ 

§  443.  Proceedings  in  the  replevin  essential  to  sustain  suit 
upon  the  bond.     The   proceedings  in  the   replevin  suit  are 

'  Manning  v.  Pierce,  2  Scam.  6.  See  Gould  v.  Warner,  3  Wend.  54.  Con- 
tra, in  North  Carolina,  where  the  remedy  is  by  sci.  fa.  Summers  v.  Parker, 
Taylor's  JST.  C.  Term  Rep.  147. 

2  Hunter  v.  Sherman,  3  Scam.  544 ;  2  Ch.  Plead.  404,  See  Keyes  v.  Mc- 
Nulty,  14  Iowa.  484. 

3  Hunter  v.  Sherman,  2  Scam.  544;  2  Chit.  Plead.  4G0;  Pcrreau  v.  Bevan, 
5  B.  &  Cress.  284;  Axford  v.  Perrett,  4  Bing.  586;  Harvy  v.  Stokes,  Willes. 
6;  Peck  V.  Wilson,  23  III.  205;  Hopkins  v.  Ladd,  35  111.  180. 

*  Pratt  v.  Donovan,  10  Wis.  378.  See  Hershler  v.  Reynolds,  32  Iowa,  152 ; 
Crites  v.  Littleton,  23  Iowa,  205. 

«  Humphrey  v.  Taggart,  38  111.  228. 

*  Wooldridge  v.  Quinn,  49  Mo.  427;  Miller  v.  Commissioners  of  Mont- 
gomery Co.,  1  Ohio,  271 ;  Humphrey  v.  Taggart,  38  111.  338. 


24:6  THE    BOND. 

essential  to  sustain  suit  upon  the  bond.  Tlie  record  of  the 
replevin  suit  need  not  be  set  out  in  the  declaration  on  the 
bond,  but  the  proceeding  should  be  recited/  and  the  judgment 
in  that  suit  stated,^  tlie  record  in  the  replevin  suit  is  ])roper 
evidence  to  sustain  the  averment  in  the  declaration. ^ 

§  4J:4.  The  material  facts  to  be  set  up.  The  material  facts 
to  be  alleged  in  a  suit  on  a  replevin  bond  are  manifestly  the 
termination  of  the  replevin  suit,  judgment  for  the  defendant, 
and  an  order  for  a  return  of  the  property,  if  that  be  the  fact. 
When  the  declaration  upon  the  bond  alleged  concerning  tlie 
replevin  suit,  that  "  said  cause  coming  for  trial,"  it  was  con- 
sidered and  adjudged  by  said  circuit  court,  that  "the  said 
Stevison  take  nothing  by  his  said  writ,  but  that  he  and  his 
pledge  to  prosecute  be  in  mercy,"  and  further,  at  tlie  same 
time  the  court  awarded  a  return  of  said  goods,  etc,  and  gave 
judgment  for  the  defendants  for  one  cent  damages  and  costs 
of  suit  —  the  record  read  in  evidence  to  sustain  the  averment, 
after  reciting  that  a  previous  order  had  been  made  requiring 
the  plaintiff  to  give  security  for  costs,  and  that  a  motion  to 
dismiss  for  non-compliance  with  that  order  had  been  made, 
proceeded:  "It  is  ordered  by  the  court  that  said  motion  be 
sustained,  and  that  this  suit  be  dismissed  at  plaintiff's  costs, 
and  that  a  writ  of  retorno  habendo  issue  herein,  and  judgment 
for  costs" — it  was  held.,  no  substantial  variation  from  the. 
declaration.*  When  the  law  permits  the  defendant  to  give 
bond  and  retain  the  property,  it  is  essential  to  aver  that  the 
property  was  delivered,  delivery  necessarily  preceding  liability 
upon  the  bond;^  even  when  there  is  no  evidence  that  any  bond 
was  given,  it  must  be  presumed  the  property  remained  witii 
the  defendant,  and  a  finding  in  his  favor  will  not  authorize  a 
judgment  for  a  return  without  proof  that  the  property  was 

1  Gould  V.  Warner,  3  Wend.  57;  Eldred  v.  Bennett,  33  Pa.  St.  183;  Sand. 
PI.  and  Ev.  769;  McGinnis  v.  Hart,  6  Iowa,  204;  Dias  v.  Freeman,  5  T.  K. 
19,3  and  104. 

2  JSTunn  v.  Goodlett,  5  Eng.  (Ark.)  89. 
8  McGinnis  v.  Hart,  6  Iowa,  208. 

■>  Stevison  v.  Earnest,  80  111.  517. 

»  Nickerson  v.  Chaltertou,  7  Cal.  570.  See,  also,  Bolandcr  v.  Gentry,  36 
Cal.  110. 


DEFENSES  TO    SUIT   ON    BOND.  24:7 

delivered  on  the  writ.*  It  need  not  be  averred  that  the  writ 
was  directed  to  the  coroner.  If  it  show  that  the  coroner  took 
the  goods  npon  the  writ,  it  is  prima  facie  that  the  writ  was 
directed  to  him;^  neither  is  it  necessary  to  aver  that  the  bond 
was  taken  in  compliance  with  the  statute,^  but  the  declaration 
must  state  the  plaintiff's  damages.* 

§  445.  When  bond  is  lost  from  the  flies.  "Where  the  bond 
has  been  lost  from  the  files,  it  cannot  be  replaced  by  a  substi- 
tute without  the  approval  of  the  court;  neither  the  party  nor 
the  clerk,  without  the  sanction  of  the  court,  can  substitute  a 
paper  purporting  to  be  a  copy,  unless  in  compliance  with  an 
order  for  that  pur2)ose.5 

§  446.  Defenses  to  suit  on  bond.  In  an  action  upon  the 
bond,  tlie  defendant  who  has  availed  himself  of  its  benefits  by 
obtaining  property  under  it,  cannot  defeat  his  liability  by  plea 
that  the  bond  was  given  for  ease  and  favor,  or  that  the  law 
was  nnconstitutional;^  neither  can  he  be  permitted  to  plead 
that  he  was  not  indebted,''  nor  show  a  want  of  jurisdiction 
in  the  court  before  whom  the  replevin  suit  was  tried. ^  In 
Roman  v.  Stratton,  2  Bibb,  (Ky.)  199,  the  court  held  that 
irregularities  of  the  plaintiff  in  the  procurement  of  the  writ 
or  the  prosecution  of  the  replevin  suit,  would  not  excuse  him 
from  liability  on  his  bond;  and  this  case  was  cited  with 
approval  in  a  leading  case  in  Arkansas.'  To  permit  the  party 
to  avail  himself  of  this  objection  would  be  to  allow  him  to 
take  advantage  of  his  own  wrong.  The  bond  was  the  plaintiff's 
voluntary  bond,  delivered  to  the  officer,  upon  which  he  obtained 
possession  ot  the  goods,  and  he  and  his  securities  must  abide 
it;'**  and  this  rule  applies  generally  to  the  defense  of  instru- 

*  McKeal  v.  Freeman,  25  Ind.  151. 

«  Shaw  V.  Tobias,  3  Corast.  (N.  Y.)  191.  * 

8  Sliaw  V.  Tobias,  3  Corast.  (N.  Y.)  191. 

*  Arnold  v.  Allen,  8  Mass.  149. 

»  Farrow  v.  Orear,  2  Duv.  (K3^)  261. 

6  Magruder  v.  Marshall,  1  Blackf.  333. 

'  Warner  v.  Matthews,  18  111.  83. 

«  McDermott  v.  Isbell,  4  Cal.  113. 

»  Nunu  v.  Goodlett,  5  Eng.  (Ark.)  90. 

»•  Roman  v.  Stralton,  2  Bibb,  (Ky.)  199 ;  IVIorse  v.  Hodsdon,  5  Mass.  314. 


248  THE   BOND. 

ments  of  this  character. '^  The  defendant  in  replevin  may 
"waive  all  defects  in  the  bond  which  do  not  go  to  the  substance 
or  defeat  his  right  of  action,  and  enforce  the  bond  against  the 
principal  and  securities.^  So  where  the  securities  are  excepted 
to  and  iail  to  justify,  it  will  not  defeat  tlie  plaintiff's  right 
to  recover,  as  though  exceptions  had  not  been  taken.'  The 
defendant  in  replevin  is  in  all  cases  liable  to  the  judgment 
authorized  by  law,  without  any  reference  to  the  conditions  of 
the  bond.  The  bond  fixes  the  liability  of  tl^e  securities.* 
"When  the  securities  are  excepted  to  and  fail  to  justify,  such 
failure  does  not  discharge  them.  Query,  as  to  whether  the 
substitution  of  a  new  bond  would  be  a  discharge  of  the 
securities  on  the  old.^ 

§  447.  When  ownership  of  property  is  settled  in  the  re- 
plevin suit.  When  the  ownership  of  the  property  has  been 
determined  in  the  replevin  suit,  it  is  regarded  as  settled;  and 
in  a  suit  upon  the  bond  in  such  a  case,  a  plea  that  the  defend- 
ant, the  plaintiff  in  the  replevin  suit,  is  the  owner  of  the 
property,  is  bad.^  So,  also,  of  a  plea  of  property  in  a  third 
person;'  and  in  fact  all  questions  determined  in  tlie  replevin 
suit  are  regarded  as  res  adjudicata,  and  cannot  be  inquired 
into  in  suit  upon  the  bond.^ 

§  448.  When  not  so  settled,  it  may  be  set  up  in  siiit  on 
the  bond.  But  when  the  title  and  right  of  possession  are  not 
settled  in  the  replevin  suit,  defendant  to  suit  on  bond  may 
plead  that  fact,  and  that  the  ownership  and  right  of  possession 
are  in  him,  and  a  plea  to  all  but  nominal  damages  would  be 
sufficient.*      Under   the   statutes   of   Illinois,   the   defendant 

'  Fant  V.  "Wilson,  3  Mon.  (Ky.)  343. 

»  Shaw  i). Tobias,  3  Comst.  (N.  Y.)  188;  Wolcottv.  Mead,  12  Met.  (Mass.)  517. 

'  Decke|jj«.  Anderson,  39  Barb.  347. 

4  Creamer  v.  Ford,  1  Heisk.  308. 

*  Van  Duyne  v.  Coope,  1  Hill,  559. 

«  Sherry  v.  Foresman,  6  Blackf.  56;   Davis  v.  Crow,  7  Blackf.  130;  Wil- 
liams V.  Vail,  9  Mich.  162;  Cushenden  v.  Harmau,  2  Tyler,  (Vt.)  431. 
'  Smith  V.  Lisher,  23  Ind.  504. 

•  Denny  v.  Reynolds,  24  Ind.  248;  Wallace  v.  Clark,  7  Blackf.  298. 

9  Stockwell  V.  Byrne,  22  Ind.  9.  See  Wiseman  v.  Lynn,  39  Ind.  250; 
Davis  V.  Harding,  3  Allen,  302;  Belt  «.  Worthington,  3  Gill.  «fe  J.  (Md.) 
247 ;  Hawley  v.  Warner,  13  Iowa,  42. 


MISCELLANEOUS    KULES    IN    SUITS    ON    BOND.  24-9 

pleaded  to  an  action  upon  the  bond  that  the  propei  ty  in  the 
replevin  suit  was  his,  and  that  tlie  merits  of  the  case  were  not 
tried  there,  but  that  the  return  was  awarded  only  because  tlie 
plaintiff  failed  to  prove  a  demand. ^  Such  a  plea,  however, 
must  affirmatively  show  that  the  case  is  within  the  provisions 
of  the  statute  by  clear  and  distinct  averments;  also,  that  the 
merits  were  not  determined  in  the  replevin  suit;  and  such  a 
plea,  it  seems,  should  admit  nominal  damages.^ 

§  449.  Defenses  which  should  be  made  in  the  replevin  suit. 
Plea  that  one  of  the  defendants  had  carried  away  the  property 
and  converted  it  to  his  use,  is  bad.  That  defense  should  have 
been  made  in  the  replevin  suit,  and  then  no  return  would  have 
been  awarded;  or,  perhaps  the  same  facts  might  sustain  a  plea 
that  the  property  was  returned. ^  So,  also,  plea  that  the  judg- 
ment in  the  replevin  was  obtained  by  fraud;"*  or,  that  the  suit 
in  replevin  was  dismissed  by  agreement,  is  bad.^  A  plea 
which  sets  up  a  return  to  the  sheriff,  and  does  not  answer  the 
part  which  charges  failure  to  prosecute  with  effect,  is  bad,^ 
though  a  return  may  be  pleaded  in  mitigation  of  damages. 

§  450.  Miscellaneous  rules  in  suits  on  bond.  It  is  a  gen- 
eral rule  that  the  defendants  to  suit  on  bond  caimot  set  up 
any  irregularities  in  the  replevin  suit  in  order  to  defeat  suit 
on  the  bond.''  When  the  practice  act  required  an  affidavit  of 
merits  to  a  plea  in  an  action  upon  a  contract  for  payment  of 
money,  a  plea  to  suit  on  a  replevin  bond  was  properly  filed 
without  affidavit.^  "Where  the  issues  in  the  replevin  suit 
involved  title  to  the  property,  and  a  verdict  was  given  for  the 
defendant  in  a  suit  ujDon  the  bond,  the  defendant  could  not 

'  The  plea  is  set  out  in  full  in  Chinn  v.  McCoy,  19  111.  600.  See  Laws 
111.,  1847,  p.  62;  Rev.  Stat.  111.  1874,  853;  Warner  v.  Mutthews,  18  111.  83. 

2  King  V.  Ramsay,  13  111.  622. 

3  Buckmaster  v.  Beames,  4  Gilm.  (111.)  443 ;  Sherry  v.  Foresman,  6 
Blackf.  58. 

*  Hutlon  V.  Denton,  2  Carter,  find.)  644. 
6  O'Neal  V.  Wade,  3  Porter,  (Ind )  410. 

*  Gould  V.  Warner,  3  Wend.  61. 

'  Jennison  v.  Haire,  29  Mich.  207;  Decker  v.  Judson,  IG  K  Y.  439;  Shaw 
V.  Tobias,  3  Comst.  192;  Moors  v.  Parker,  3  Mass.  310;  Buck  v.  Lewis,  9 
Minn.  317. 

s  Peck  0.  Wilson,  22  111.  206. 


250  THE   BOND. 

set  up  a  new  title  acquired  after  the  bond  was  given  ;^  but  may 
show  that  since  the  judgment  for  the  return,  the  interest  of 
the  plaintiff  has  ceased  in  mitigation,  but  not  in  bar  of 
damages;  or,  that  the  property  will  at  once  revert  to  the 
defendant; 2  or,  he  may  plead  set  off,  the  suit  upon  the 
bond  being  an  action  on  a  contract,  subject  to  set  off  like 
other  actions,  though  replevin  is  not  subject  to  set  off;^  or, 
may  plead  performance  of  the  condition  of  the  bond,  anfl 
require  the  plaintiff  to  state  the  breaches  of  the  condition 
upon  which  he  expects  to  relv;*  or,  a  release  of  all  demands 
executed  by  the  plaintiff  in  the  suit  on  the  bond,  to  the  prin- 
cipal obligor  thereon,  is  a  release  of  the  bond.^  A  judgment 
for  costs  only  in  the  replevin  suit,  and  return  of  execution 
thereon  satisfied,  is  a  discharge  of  the  securities.'  To  suit  on 
bond  the  defendant  pleaded:  1.  Nondajnificatus.  2.  If  the 
plaintiff  was  injured  it  was  by  his  own  wrong.  3  and  4.  That 
the  goods  belonged  to  the  principal  obligor.  5.  That  the 
principal  obligor  was  ready  and  willing  to  prosecute  his  suit 
with  effect,  but  that  the  court  at  the  instance  of  the  plaintiff 
dismissed  the  suit  for  want  of  jurisdiction  on  account  of 
defects  apparent  in  the  ailidavit  and  the  writ,  and  that  no 
damages  were  recovered  in  the  replevin  suit;  nor  was  a  return 
of  property  awarded.  6.  That  the  bond  was  executed  without 
consideration.  7.  That  the  consideration  was  illegal.  8.  No 
record  of  the  replevin  suit.  On  demurrer  the  court  held  these 
pleas,  except  the  last,  were  bad.'' 

§  451.  Variation  between  the  bond  and  aflQdavit  in  descrip- 
tion, no  defense.  A  variation  in  description  between  the  prop- 
erty in  the  affidavit  and  the  bond,  will  be  no  defense  to  suit 
on  bond.     That  should  have  been  pleaded  in  the  replevin  ;8 

'  Carr  v.  Ellis,  37  Ind.  465. 

"  Tuck  V.  Moses,  58  Maine,  461. 

«  Balsley  v.  HolTuian,  13  Pa.  St.  612;  Miller  v.  Fuutz,  2  Yeates,  418. 

♦  Doogan  v.  Tyson,  6  Gill.  &  J.  (Md.)  453. 

»  Thomas  v.  Wilson,  6  Blackf.  (Ind.)  203;    Cocks  v.  Nash,  9  Bing.  341; 
Tattle  V.  Cooper,  10  Pick.  281. 
«  ]Vlillett  V.  Ilayford.  1  Wis.  401. 
'  Sherry  v.  Foresman,  6  Blackf.  56. 

•  McDcrmott  v.  Doyle,  11  Mo.  443. 


VALUE    OF   THE    PROPERTY    STATED    IN   BOND.  251 

neither  can  the  defendant  to  suit  on  bond  be  permitted  to 
object  to  the  judgment  in  the  replevin  suit,  on  the  ground 
that  the  writ  issued  without  an  affidavit;  tliat  tlie  court  would 
in  the  absence  of  the  affidavit  from  the  record,  presuuie  that 
it  was  properly  filed;  or,  if  not,  will  not  permit  a  plaintiff  in 
replevin,  who  managed  the  case  and  who  obtained  the  property, 
to  reap  all  the  benefits  of  his  suit  and  then  escape  liability  in 
a  suit  on  his  bond,  on  the  ground  that  he  procured  the  writ 
and  obtained  delivery  of  the  property  without  affidavit,  or 
committed  other  irregularities  to  defeat  it;^  neither  will  the 
fact  that  the  defendant  has  collected  his  costs  in  the  replevin 
suit.  The  conditions  of  the  bond  are  separate,  and  the  col- 
lection of  costs  is  not  a  surrender  of  his  right  of  action. ^ 

§  452.  Submission  of  the  replevin  suit  to  arbitration,  a 
defense.  But  a  submission  of  the  replevin  to  an  arbitration 
by  agreement  of  the  parties  without  the  consent  of  the  secur- 
ities, will  discharge  the  latter.  Had  the  suit  been  prosecuted, 
the  court  might  have  awarded  a  return.  This  would  have 
enabled  the  securities  to  take  steps  for  a  deliverance.  They 
did  not  agree  to  return  without  an  investigation,  and  were 
entitled  to  have  that  investigation  under  the  forms  of  trial  by 
the  court  ai  d  jury.^ 

§  453.  Value  of  the  property  stated  in  bond ;  how  far  bind- 
ing. The  plaintiff  in  replevin  who  fixed  the  value  of  the 
property  as  stated  in  the  bond,  is  bound  by  that  value,  and 
estopped  from  questioning  it,  when  sued  on  the  bond;*  and 
as  a  usual  thing,  such  value  also  concludes  the  sureties  who 
sign  the  bond,  but  the  defendant,  in  replevin,  had  no  concern 
in  fixing  the  value, ^  and  is  not  bound  by  any  of  the  recitals  in 

»  Jennisoa  v.  Haire,  29  Mich.  208. 

«  Kafer  v.  Harlow,  5  Allen,  34S. 

apirkins  v.  Rudolph,  30  111.  312;  Moore  v.  Bowraaker,  6  Taunt.  379; 
Aklridge  B.Harper,  10  Bing.  118;  Coleinau  ».  Wade,  2  Seld.  (><'.  Y.)  4-4; 
Bowmuker  v.  Mooi-e,  1  Exch.  li.  355. 

■»  Wiseman  v.  Lynn,  39  Jnd.  259;  Trimble  v.  State,  4  Blackf.  435;  May  v. 
Johnson,  3  Ind.  449;  Guard  v.  Bradley,  7  Ind.  600;  Samnions  v.  Newman, 
27  Ind,  508;  German  Ins.  Co.  v.  Grim,  32  Ind.  249;  Mattoon  v.  Pearce,  12 
Mass.  406;  Gibbs  v.  Bartlett,  2  W.  &  S.  (Pa.)  34;  Clap  v.  Guild,  8  Mass.  153. 

5  Howe  V.  Handley,  28  Me.  251;  Melvin  v.  Wiuslow,  10  Me.  397;  Parker 
V.  Simuuds,  8  Met.  205;  Thomas  v,  Spofford,  40  Me.  410;  Tuck  v.  Moses,  58 


252  THE   BOND. 

the  bond;  neither  will  an  appraisraent  of  the  value  under  a 
statute  authorizing  it,  be  binding  on  the  parties. ^ 

§  4:54:.  Where  the  value  of  a  number  of  articles  is  stated  at 
a  gross  sum.  When,  as  is  sometimes  the  case,  a  number  of 
articles  are  replevied,  and  the  bond  sets  out  the  aggregate 
value,  and  some  are  returned  and  some  are  not,  the  recital  of 
the  aggregate  value  in  tlie  bond  affords  no  information  as  to 
the  value  of  separate  articles;  the  plaintiff  in  the  suit  must 
show  the  actual  value,  or  he  can  have  but  nominal  damages. 2 

§  455.  Eflfect  of  the  destruction  of  the  property.  The  con- 
ditions of  the  bond  sometimes  become  impossible  to  perform 
by  the  death  or  destruction  of  the  chattel.  "When  domestic 
animals  are  the  subject  of  the  action,  thej  are  liable  to  die; 
in  fact,  all  chattels  are  liable  to  be  destroyed  pending  the 
suit. 3  If  the  possession  of  the  defendant  be  wrongfully 
acquired,  in  violation  of  a  trust,  or  by  fraud  or  force;  or, 
where  the  claim  is  characterized  by  tort  and  injustice,  he  can- 
not shield  himself  from  payment  of  value,  even  though  the 
property  may  have  been  destroyed. * 

§  456.  Parties  to  suit  on  bond  cannot  discharge  it  to  the 
injury  of  the  sheriff.  In  suit  on  bond,  by  the  sheriff,  he  sues 
for  his  own  protection;  and,  if  this  be  pending,  the  defend- 
ants cannot  release  the  bond,  the  sheriff  having  become 
responsible  for  costs.  A  release  of  the  bond  before  suit  would 
extinguish  it;  the  sheriff  would  have  no  further  interest  in  it, 
and  would  stand  discharged  from  his  liability. ^  If  the  suit, 
however,  has  been  begun  by  the  defendant  in  replevin  in  his 
own  name,  he  may  release  the  bond,  as  in  that  case  he  alone  is 

Me.  477.  See  in  this  connection,  Leonard  v.  Whitney,  109  Mass.  265; 
Wright  V.  Quirk,  105  Mass.  48;  Stevens  v.  Tuite,  104  Mass.  328.  "The 
sum  named  in  the  bond  as  the  value  of  the  goods,  is  sufficient  evidence, 
tliough  not  absolutely  conclusive  on  the  makers."  Clap  v.  Guild,  8  Mass. 
153;  Mattoon  v.  Pearce,  12  Mass.  400;  Wright  v.  Quirk,  105  Mass.  48. 

'  Kafer  v.  Harlow,  5  Allen,  (Mass.)  348;  Leighton  v.  Brown,  98  Mass.  515. 

»  Sopris  V.  Lilley,  2  Col.  498. 

3  Carpenter  v.  Stevens,  12  Wend.  589. 

*  Porter  v.  Miller,  7  Tex,  480.  See  title.  Damages;  post.  As  to  damages 
for  breach  of  contract  occasioned  by  the  act  of  God,  see  Sedgwick  oa 
Dam.,  G  Ed.,  p.  255,  note  2. 

6  Armstrong  v.  Burrell,  12  Wend.  303. 


DAMAGES   ON    BOND.  253 

liable  for  costs.*  The  judgment  for  return  cannot  be  im- 
peached upon  tlie  ground  of  fraud  on  the  part  of  the  plaintiff 
in  letting  tlie  judgment  go.^ 

§457.  Damages  on  bond ;  how  assessed.  In  an  action  on 
the  bond,  the  damages  are  assessed  on  the  principle  of  com- 
pensation. The  sura  named  in  the  bond  is  usually  regarded 
as  a  penalty,  and  upon  pajanent  of  a  sum  sufficient  to  com- 
pensate the  obligor  for  the  loss  he  has  sustained,  the  bond  will 
be  discharged.  By  the  common  law  the  makers  of  the  bond 
were  liable  for  the  full  amount  of  the  penalty  named,  but  in 
case  of  hardship  chancery  frequently  interposed  relief;  and  at 
length,  by  the  statute, ^  it  was  provided  that  in  actions  on 
bonds  with  penalties,  the  defendant  might  pay  the  principal 
debt,  with  interest  and  costs,  and  the  penalty  might  be  dis- 
charged.^ The  judgment  is  for  the  full  penalty  of  the  bond, 
but  the  judgment  is  usually  accompanied  by  an  order  that  it 
be  satisfied  by  the  payment  of  a  less  sum,  which  is  iixed  at 
the  amount  of  damages  the  plaintiff  has  sustained. ^  The 
bond  in  replevin  is  statutory,  and  is  properly  classed  with 
other  statutory  bonds  given  to  secure  the  defendant  against 
damages  resulting  from  the  wrongful  use  of  a  provisional 
remedy.  As  such,  the  remedy  upon  the  bond  is  governed  by 
the  same  principles  substantially  as  those  which  govern  in  the 
case  of  injunction  and  attachment  bonds.  The  sum  named  as 
the  penalty  is  for  the  purpose  of  indemnity  only,  not  the 
measure  of  the  injured  party's  right  of  recovery,  when  his 
actual  damage  is  less  than  that  sum.     The  value  of  the  goods 

'  Armstrong  v.  Burrell,  12  Wend.  302. 

«  Walls  V.  Johnson,  16  Ind.  374. 

«  4  Anne,  Chap.  16.  pg  12  and  13. 

■•  See  Slat.  8  and  9  Will.  3,  Ch.  11,  §  8.  When  the  judges  refused  to  grant 
relief  at  law,  after  forfeiture  of  bonds,  upon  payment  of  the  principal,  in- 
terest and  costs.  Sir  Tno]MA.s  Moore  swore  by  the  body  of  God  he  would 
grant  an  injunction.  Wyllie  v.  Wilkes,  Doug.  (Eng.)  523,  (505.)  The  stat- 
utes in  several  of  the  States  limit  the  recovery  on  the  bond  to  compensation 
for  such  damages  as  have  been  sustained  in  consequence  of  the  breach  of 
the  conditions.    R  S.  111.  1874,  p.  853,  §  25. 

'  Gould  V.  Warner,  3  Wend.  54;  Hunter  v.  Sherman,  2  Scam.  544;  Odell 
V.  Hole,  25  111.  208;  Frazier  v.  Laughlin,  1  Gilm.  347;  March  v.  Wright,  14 
111.  248;  Toles  v.  Cole,  11  111.  563. 


254  THE   BOND. 

which  have  been  ordered  to  be  returned,  and  have  not  been 
restored  in  compliance  with  the  order,  with  interest,  will 
usually  be  the  measure  of  damages  in  such  cases.* 

§458.  The  same;  amount  of.  The  amount  of  damages  in 
an  action  on  a  replevin  bond  must  depend  materially  on  the 
right  of  the  plaintiff  (defendant  in  replevin)  to  the  property. 
If  it  is  determined  in  the  replevin  suit  that  the  property  be- 
longed to  him,  then  in  suit  on  the  bond  he  ought  to  have  a 
right  to  recover  its  value;  but  if  it  appear  that  he  had  no 
right  to  the  property,  he  has  sustained  no  damage  by  the 
refusal  of  the  obligor  to  deliver  it  to  him,  and  in  such  case, 
unless  other  actual  damages  are  shown,  the  plaintiff's  should 
be  nominal. 2 

§  459.  The  same,  in  case  of  joint  owners.  When  a  landlord 
was  joint  owner  with  his  tenant,  and  so  defeated  the  action  of 
replevin,  and  had  judgment  for  a  return,  yet  in  a  suit  on  the 
bond  for  a  failure  to  comply  with  the  order,  the  landlord  was 
permitted  to  recover  only  the  value  of  his  interest  in  the 
property; 3  and  in  this  case  the  defendants  in  the  suit  on  the 
bond  were  permitted,  notwithstanding  the  judgment  in  re- 
plevin, to  show  the  character  of  the  possession  upon  which 
the  plaintiff  recovered.*  "When  the  defendants  in  the  replevin 
had  a  verdict  and  judgment,  but  it  appeared  that  the  goods 
taken  had  never  been  paid  for  by  them,  and  that  they  could 
not  be  liable  for  their  price,  in  suit  on  the  bond  they  could  not 
recover  the  value  of  the  goods,  but  only  the  value  of  their 
interest." 

§  460.  Release  of  bond  by  seizure  on  another  writ  pending 
suit.  When  the  property  is  delivered  to  the  plaintiff  on  the 
writ,  and  pending  the  suit  it  is  taken  from  him  by  the  order 
of  the  court,  the  securities  may  set  up  that  fact  as  a  discharge. ^ 

'  Ormsbee  v.  Davis,  18  Conn.  555. 

s  Wallace  v.  Clark.  7  Blackf.  299;  Belt  v.  Wortliington,  3  Gill  &  J.  (Md.) 
247. 

»  Mason  v.  Sumner,  23  Md.  312. 

Mb. 

"  Seldner  v.  Smith,  40  Md.  603. 

*  Caldwell  V.  Cans,  1  Blake,  (Mon.)  578.  Compare  Ackerman  v.  King,  29 
Tex.  291 ;  Kercbeval  v.  Harney,  Meigs,  (Tenn.)  403. 


LIMITATIONS   TO   SUIT   ON    BOND.  255 

Tlie  fonnda,tion  for  the  rule  seems  to  rest  on  the  theory  that 
property  seized  on  a  writ  of  replevin  is  in  the  custody  of  the 
court.  Though  in  the  plaintiff's  possession,  it  is  always 
within  the  power  and  control  of  the  court,  and  if  taken  sub- 
sequently upon  process  from  the  same  court,  the  seizure  by 
the  officer  is  equivalent  to  a  return  of  the  property  to  him,i 
and  the  securities  on  the  bond  ought  not  to  be  held  responsible 
for  property  which  has  been  taken  from  them  by  order  of  the 
court  in  whose  control  it  was.  To  what  length  this  doctrine 
may  be  carried  is  a  question  as  yet  undecided,  so  far  as  the 
cases  examined  disclose. ^ 

§  461.  Limitations  to  suit  on  bond.  The  statute  of  lim- 
itations to  a  suit  on  bond  does  not  begin  to  run  until  a 
judgment  for  return.  A  simple  delay  to  prosecute  the  security 
for  a  shorter  period  than  the  time  limited  by  law,  will  not  dis- 
charge them.  3 

§  402.  Suit  on  by  sheriff  may  be  in  his  individual  name. 
Suit  by  sheriff  need  not  be  in  the  name  of  his  office;  his  indi- 
vidual name,  with  proper  words  of  description,  will  be 
sufficient.'* 

>  Hunt  v.  Robinson,  11  Cal.  263. 

»  Consult  Burkle  v.  Luce,  1  Comst.  (N.  Y.)  163;  Lockwood  v.  Perry,  9 
Met.  444;  McRea  v.  McLean.  3  Port,  (Ala.)  138;  Evans  v.  King,  7  Mo.  411 ; 
Hagan  v.  Lucas,  10  Peters,  (U.  S)  400;  Lovejoy  v.  Bright,  8  Blackf.  206. 

2  Daniels  c.  Patterson,  3  Comst.  51. 

<  Caldwell  v.  West,  1  Zab.  (21  N.  J.)  411. 


256 


THE   WBTT. 


CHAPTER  XV. 


THE  WRIT. 


Section. 

To  whom  addressed,  and  the 
mandate 463 

Must  contain  summons  to  the 
defendant         ....  464 

Must  describe  the  particular 
property 465 

Alias  writ 466 

Writ  lies  for  property  in  the  ju- 
risdiction of  the  court  wlien 
it  issued 467 

The  return  of  the  writ       .        .  468 

At  common  law,  plaintiff  took 
the  property  as  his  own,  and 
might  so  dispose  of  it    .        .  469 

Property  now  regarded  as  in  the 
custody  of  the  law  .        .        .  470 


Section. 

Injury  to  goods  while  in  plain- 
tiff's possession        .        .        .  471 

Rights  of  the  plaintiff  to  prop- 
erty taken  on  the  writ     .        .  472 

The  same 473 

The  same.  Delivery  on  the 
writ  does  not  confer  title        .  474 

The  same.  Where  the  action  is 
for  a  distress   ....  475 

The  effect  of  the  writ  on  the 
rights  of  the  parties  pending 
the  suit     ....         476 

The  same 477 

The  same.  Illustrations  of  the 
rule 478 

The  same.     Observations  upon  479 

The  same 480 


§  4G3.  To  whom  addressed,  and  the  mandate.  The  writ  is 
usually  addressed  to  the  sheriff;  but  if  lie  is  a  party,  it  may 
be  addressed  to  the  coroner.  When  the  writ  was  addressed  to 
the  sheriff,  and  was  served  by  the  coroner,  the  plaintiff  Avas 
permitted  to  amend  it  by  inserting  the  word  coroner  in  the 
directory  part.i  In  its  usual  form  it  contains  a  mandate  to 
the  officer  to  take  and  deliver  the  property  described;  though 
by  statute,  in  many  of  the  States,  it  may  issue  without  the 
order  for  delivery.  The  mandate  in  the  writ  for  the  delivery 
of  the  goods  is  usually  upon  condition  that  the  plaintiff 
shall  first  execute  the  bond,  and  upon  the  neglect  of  the  plain- 
tiff to  do  so,  the  sheriff  cannot  take  the  property.  In  other 
States  the  clerk  takes  the  bond  before  issuing  the  writ,  and  in 


•  Simcoke  v.  Frederick,  1  Ind.  54 


MUST   DESCRIBE   THE    PABTICULAE   PROPERTY.  257 

such  case  the  sheriff  has  no  concern  but  to  execute  it.  These 
matters  depend  entirely  upon  the  local  statutes. 

§  464.  Must  contain  summons  to  the  defendant.  It  must 
contain  a  summons  to  the  defendant  to  appear  in  court  and 
answer  the  plaintiff's  claim;  and  the  sheriff  should  serve  it 
by  summoning  him;  but  if  the  defendant  appears,  an  omis- 
sion of  the  sheriff  to  serve  it  is  waived.  ^  It  need  not  show 
that  the  affidavit  required  by  the  statute  has  been  made,^  nor 
that  the  bond  has  been  filed;  nor  is  it  essential  that  it  state 
the  value  of  the  property,  though  this  is  usual  and  proper.  It 
may  be  issued  for  any  property  within  the  jurisdiction  of  the 
court  at  the  time  it  is  issued,  and  the  subsequent  removal  of 
the  goods  to  defeat  the  writ  w^ill  not  deprive  the  court  of  juris- 
diction, if  they  are  pursued  and  taken  by  the  sheriff. ^ 

§  465.  Writ  must  describe  the  particular  property.  The 
writ  must  describe  the  property  to  be  seized  and  delivered,  in 
such  a  manner  that  the  sheriff,  from  the  description,  or  from 
the  description  aided  by  inquiries,  can  find  and  deliver  it.  If, 
for  any  defect  or  uncertainty  in  the  description,  it  is  doubtful 
what  property  is  to  be  taken,  the  sheriff  may  refuse  to  serve 
it;*  and  if  the  writ  omit  to  describe  the  goods  to  be  taken,  it 
will  be  quashed,  even  after  appearance;^  but  this  is  not  neces- 
sary, unless  the  writ  commands  a  delivery  of  the  goods.  When 
it  is  simply  a  summons,  the  articles  need  not  be  described.' 
The  description  ought  to  be  as  full  and  particular  as  the  cir- 
cumstances of  the  case  will  warrant,  so  that  if  the  officer  can 
take  part,  but  cannot  find,  or  for  any  reason  cannot  take  the 
remainder,  he  may  do  so,  and  make  return  of  his  doing  under 
the  writ.' 

§  466.  Alias  writ.  "Where  the  property  has  been  seized  and 
delivered  upon  the  command  of  the  original  writ,  but  the  de- 

1  Swann  v.  Shemwell,  2  Har.  &  G.  (Md.)  283. 
^  Magee  v.  Siggerson,  4  Blackf.  70. 

2  Craft  V.  Franks,  34  Iowa,  504. 

*  Smith  v.  McLean,  24  Iowa,  324;  Snedekert?.  Quick,  6  Halst.  (N.  J.)  179; 
Magee  v.  Siggerson,  4  Blackf.  70. 
'  Suedeker  v.  Quick,  6  Halst.  (IST.  J.)  176 ;  De  Witt  v.  Morris,  13  Wend.  495. 
«  Finehout  v.  Grain,  4  Hill,  537. 
">  Welch  v.  Smith,  45  Cal.  230.    See  ante,  §  169,  et  seq. 
17 


258  THE   WEIT. 

fendant  has  not  been  served  or  where  the  defendant  was 
improperly  served,  an  alias  writ  must  issue.  ^  So,  when  part 
or  all  of  the  goods  embraced  in  the  first  writ  were  not  obtained 
by  the  officer,  an  alias  writ  was  allowed  to  issue  for  the  pur- 
pose of  obtaining  them;^  and  in  such  case  an  alias  writ  may 
issue  to  any  other  county  than  that  in  which  the  suit  was 
brought  and  defendant  found,  the  same  as  in  other  cases  where 
such  writs  are  proper. ^  Auy  other  rule  would  compel  the 
plaintiff  to  dismiss  his  suit,  and  perhaps  do  great  injustice.* 
The  same  practice  has  been  recognized  in  New  York^  and  in 
Florida.  <> 

§  467.  Writ  lies  for  property  in  the  jurisdiction  of  the  court 
when  it  issued.  It  seems  that  the  writ  will  lie  for  property 
which  was  within  the  jurisdiction  of  the  court  when  it  was 
issued,  and  that  the  sheriff  may  pursue  and  take  it  in  another 
county;'^  but  upon  this  point  the  statutes  of  the  different 
States,  as  to  jurisdiction  of  the  sheriff,  may  be  at  variance,  and 
should  be  the  guide  to  the  officer. 

§468.  The  return  of  the  writ.  The  officer's  return  must 
show  how  he  has  executed  the  writ,  set  out,  so  that  the  court 
can  see  what  has  been  done,  and  whether  the  mandate  has 
been  complied  with.  It  ought  to  show,  when  such  is  the  con- 
dition of  the  writ,  that  the  sheriff  has  taken  bond,  and  who 
the  securities  are.^ 

§  469.  At  common  law,  plaintiff  took  the  property  as  his 
own,  and  might  so  dispose  of  it.  By  the  common  law,  the  plain- 
tiff took  the  goods  delivered  to  him  on  his  writ  of  replevin  as 
his  own  property.  He  might  sell  or  otherwise  dispose  of  them 
pending  the  suit,  as  he  saw  fit.     In  the  theory  of  that  law  the 

'  O'Brien  v.  Haynes,  61  111.  495, 
2  Maxon  v.  Perrott,  17  Mich,  335. 
sHiles  V.  McFailane,  4  Cliand.  (Wi3.)  89. 

*  O'Brien  v.  Haynes,  Gl  111.  495. 

»  Ex  parte  Johnson,  7  Cow.  424;  Snow  v.  Roy,  22  Wend.  602. 

•  Branch  v.  Branch.  6  Fla.  315. 
"I  Craft  V.  Franks,  34  Iowa,  504. 

«  Hays  V.  Bouthalier,  1  Mo.  345;  Pool  v.  Loomis,  5  Ark.  110;  Mattingly 
V.  Crowley,  42  111.  300;  Miller  v.  Moses,  56  Me.  134;  Nashville,  etc.,  v. 
Alexander,  10  Humph.  378. 


PKOPERTY  IN  CUSTODY  OF  THE  LAW.  259 

property  was  his,  and  liad  been  distrained  by  the  defendant. 
The  distrainor  set  up  no  claim  to  the  ownership  of  the  prop- 
erty. All  he  claimed  was  a  ric^ht  to  seize  and  hold  it  as  a 
pledge  or  security  for  rent,  which  he  insisted  was  due  him.i 
Upon  replevin,  in  such  cases,  the  plaintiff,  by  his  writ,  took 
his  former  title  to  the  property,  and  gave  security  that  he 
would  show  the  distress  to  have  been  wrongful.  The  lien  of 
the  distrainor  was  gone,  and  its  place  supplied  by  the  bond.* 

§  470.  Property  now  regarded  as  in  the  custody  of  the  law. 
In  modern  practice,  cases  of  distress  comprise  but  a  small 
portion  of  the  cases  of  replevin,  and  by  the  theory  of  the  law 
in  other  cases,  the  ownership  is  determined  by  the  result  of 
the  suit.  Pending  this,  the  property  is  regarded  as  in  the 
custody  of  the  law,  though  in  the  plaintiff's  possession. ^  The 
writ  does  not  confer  title  to  the  property  ;4  but  it  seems,  in 
many  cases,  that  the  plaintiff  acquires  such  an  interest  in  the 
iiroperty  delivered  to  him  on  the  writ  as  to  entitle  him  to  sell 
or  dispose  of  it,  the  bond  being  regarded  as  sufficient  to  in- 
demnify the  other  party  for  the  value  of  the  property  in  case 
latter  succeeds. ^  To  describe  the  rights  of  a  plaintiff  to 
property  delivered  to  him  pending  the  suit  is  one  of  the  most 
obscure  and  difficult  problems.  JNo  general  statement  can  be 
made  without  involving  numerous  exceptions.' 

§  471.  Injuries  to  goods  while  in  plaintiff's  possession. 
If  the  goods  are  injured  or  decay  while  in  plaintiff's  posses- 
sion, it  must  be  at  his  risk;  and  in  the  case  of  fruit,  fresh 
meat,  vegetables,  or  perishable  goods  which  are  valuable  only 
for  immediate  use  or  consumption,  it  would  entirely  defeat 
the  object  and  j)urposes  of  the  action  if   the  plaintiff  was 

'  Gilbert  on  Replevin,  55. 

'  3  Bla.  Com.  146;  Lowry  v.  Hall,  2  W.  &  S.  (Pa.)  134;  Speer  v.  Skinner, 
35  111.  282;  Woglam  v.  Cowperthwaite,  2  Dall.  (Pa.)  68;  Frey  v.  Lecper,  2 
Ball.  131;  Brunei"  v.  Dyball,  42  111.  35. 

sfiruner  v.  Dyball,  42  111.  34;  Hardy  v.  Keeler,  56  111.  152;  Stevens®. 
Tuite,  104  Mass.  332 ;  Miller  v.  White,  14  Fla.  435 ;  Milliken  v.  Selye,  6  Hill. 
U-'-.     Compaiv  Buckley  v.  Buckley,  9  Nev.  379;  People  v.  Neill.  74  111.  68. 

^  Lovett  V.  Burkhardt,  44  Pa.  St.  174;  Burkle  v.  Luce,  6  Hill,  558. 

«  Gary  v.  Hewitt,  26  Mich.  229. 

♦  See  post,  §  479,  et  seq. 


260  THE   WKIT. 

obliged  to  keep  them,  (when  from  their  nature  they  must 
perish,)  and  thus  be  responsible  for  their  full  value ;i  he  can- 
not be  allowed  to  return  them  in  a  damaged  condition,  without 
being  liable  for  the  damage. ^  "When  the  property  is  valuable 
only  for  use,  as,  for  example,  a  sewing  machine  or  horse,  the 
plaintiff  is  liable  for  the  value  of  the  use  while  it  is  in  his 
possession, 3  and  has  an  undoubted  right  to  put  the  property 
to  use  without  being  liable  for  depreciation  resulting  from  the 
use.  So  where  the  property  was  valuable  only  for  consump- 
tion, the  plaintiff  in  the  nature  of  things  must  put  them  to  use 
or  bear  the  loss  which  their  decay  or  depreciation  occasions. 

§  472.  Rights  of  the  plaintiff  to  property  taken  on  the  writ. 
If  the  plaintiff  is  the  general  owner  of  property  seized  on 
execution  or  attachment,  he  may,  after  the  execution  of  a 
bond  and  the  delivery  of  the  property  to  him,  sell  it  and 
confer  upon  the  purchaser  a  good  title;  if  he  was  not  such 
owner,  he  could  not.*  The  restoration  of  the  plaintiff's 
property  to  his  possession  invests  him  with  full  power  to 
dispose  of  it.  The  execution  of  the  bond,  and  delivery  of  the 
property  under  the  writ,  releases  it  from  the  lien  of  the  execu- 
tion, at  least  so  far  as  that  it  may  be  sold  and  a  good  title 
conveyed  to  a  bona  fide  purchaser.  ^ 

§  473.  The  pame.  When  the  title  and  the  possession  both 
unite  in  one  person,  the  fact  that  he  acquired  that  possession  by 
virtue  of  a  writ  of  replevin  will  not  debar  him  of  the  right  to 
sell  and  convey  a  good  title.'  So,  where  goods  are  distrained, 
the  tenant  may  pay  the  rent  and  take  his  goods,  discharged 
from  the  landlord's  claim,  or  he  may  give  bond  and  replevy 

'  Gordon  ».  Jenney,  16  Mass.  469;  Lockwood  t.  Perry,  9  Met.  444;  Men- 
nie  ».  Blake,  6  E.  «&  B.  (88  E.  C.  L.)  843;  Stevens  «.  Tuite,  104  Mass.  333. 
«  Allen  V.  Fox,  51  N.  Y.  563. 
2  See  Sec.  579,  et  seq. 

*  Bradyll  v.  Ball,  1  Bro.  Ch.  C.  428;  Gimble  v.  Ackley,  12  Iowa,  31. 

'  Gimble  v.  Ackley,  12  Iowa,  31 ;  Woglam  v.  Cowperthwaite,  3  Dall.  (Pa.) 
68;  Frey  v.  Leeper,  2  Dall.  (Pa.)  131;  Burkle  v.  Luce,  6  Hill,  558:  Jones  v. 
Peasley,  3  Greene,  (Iowa,)  52 ;  Smith  v.  McGregor,  10  Ohio  St.  467.  Gomra, 
Lockwood  B.  Perry,  9  Met.  (Mass.)  440 ;  Burkle  v.  Luce,  1  Comst.  (N.  Y.) 
163;  Hunt  v.  Robinson,  11  Cal.  263. 

•  Donohoe  t.  McAleer,  37  Mo.  313;  Burkle  •».  Luce,  1  Comst.  (N.  Y.)  163. 


EFFECT   OF    THE   WRIT.  261 

the  goods  under  a  proper  offer  to  show  tliat  the  distress  was 
wrongful;  in  the  latter  case,  the  lien  of  the  landlord  is  gone; 
he  must  look  to  the  securitj.i 

§  474.  The  same.  Delivery  on  the  writ  does  not  confer  title. 
Delivery  by  virtue  of  the  writ  invests  the  plaintiff  with  the 
possession  of  the  property,  and  pending  the  suit,  the  defendant, 
though  he  may  be  the  owner,  cannot  disturb  the  plaintiff's 
right  of  possession.  Such  delivery,  however,  does  not  affect 
the  question  of  ownership;  it  does  not  in  any  way  tend  to 
show  title  in  the  plaintiff;  it  is  in  fact  but  a  temporary  right 
which  may  terminate  upon  the  discontinuance  or  abatement 
of  the  suit,  or  by  judgment  against  the  plaintiff. 2  So,  where 
the  plaintiff  wrongfully  sues  out  a  writ  of  replevin  and 
obtains  possession  of  goods,  and  afterwards  dismisses  his  suit, 
the  defendant  is  not  driven  to  a  suit  upon  the  bond,  (unless  it 
be  in  case  of  a  distress,)  but  may  sustain  replevin  for  the 
property. 3  Where  goods  are  replevied  from  the  possession  of 
an  agent  or  bailee  of  the  owner,  the  latter,  if  a  stranger  to  the 
proceeding,  may  sustain  replevin  from  the  plaintiff  in  the 
first  suit.* 

§  475.  The  same.  Where  the  action  is  for  a  distress.  By 
replevin  of  goods  distrained  the  lien  of  the  distrainor  is  sus- 
pended, but  if  a  return  be  awarded,  and  upon  the  service  of 
the  writ  of  return  they  are  found  in  the  possession  of  the 
defendant,  (the  plaintiff  in  replevin,)  they  may  be  taken  and 
returned  to  the  defendant.^ 

§  476.  The  effect  of  the  writ  on  the  rights  of  the  parties 
pending  the  suit.  Under  the  statutes  in  this  country,  gener- 
ally the  effect  of  the  writ  is  not  to  divest  the  title  or  the  lien 
of  the  defendant;   this  is  affected  only  by  the  judgment  of 

1  Bruner  v.  Dyball,  42  111.  35;  Speer  v.  Skinner,  35  111.  283. 

2  Lovett  V.  Burkhardt,  44  Pa.  St.  174;  Speer  v.  Skinner,  35  111.  282;  Bru- 
ner V.  Dyball,  42  111.  34. 

3  Bruner  v.  Dyball,  42  111.  35. 

*  White  V.  Dolliver,  113  Mass.  402;  Globe,  etc.,  v.  Wright,  106  Mass.  207. 

5  Burkle  v.  Luce,  6  Hill,  559;  Burkle  v.  Luce,  1  Comst.  (1  N.  Y.)  163  and 
239;  Bradyll  v.  Ball,  Bro.  Ch.  Rep.  427;  Woglam  v.  Cowperthvvaite,  2  Dall. 
68;  Acker  c.  White,  25  Wend.  614;  Frey  v.  Leeper,  2  Dall.  131;  Anon. 
Dyer,  280  6. 


262  THE  WKiT. 

the  court  after  a  hearing.  If  the  title  could  be  divested  bj 
the  execution  of  the  replevin  bond  and  delivery  of  the  gooJs 
upon  the  writ,  the  primary  object  of  the  suit  w^ould  be 
defeated  —  the  unsuccessful  party  could  always  make  his  elec- 
tion to  keep  the  goods  or  pay  the  value.  This  advantage  was 
never  intended  by  the  statute  to  be  given  to  a  party  clearly  in 
the  wrong.  The  eifect  of  the  replevin  is  simply  to  give  the 
party  the  possession  of  the  property  pending  the  suit;  the 
title  is  not  changed.  A  sale  made  by  the  party  so  in  posses- 
sion, who  afterwards  turns  out  to  have  no  title,  cannot  convey 
title  to  the  purchaser  against  the  real  owner. ^  In  California, 
it  was  said  in  arg.  the  real  owner  could  in  such  case  recover 
his  property  even  from  an  innocent  purchaser;  that  the  prop- 
erty was  in  the  custody  of  the  law,  and  that  all  parties  must 
take  notice.  2  In  the  case  of  Hagan  v.  Lucas,  10  Peters,  (U.  S.) 
400,  Mr.  Justice  McLean  said,  on  giving  bond  the  property  is 
placed  in  the  possession  of  the  claimant;  his  custody  is  the 
custody  of  the  sheriif ;  the  property  is  not  withdrawn  from  the 
custody  of  the  law.  In  the  hands  of  a  claimant  under  bonds 
to  the  sheriif  for  its  delivery,  it  is  as  far  from  the  reach  of 
other  process  as  it  would  have  been  in  the  hands  of  the 
officer.3  When  one  replevied  colts,  and  before  the  suit  was 
determined  sold  them;  afterwards  the  suit  was  decided  against 
him  and  a  return  awarded,  the  defendant  in  the  suit  replevied 
them  from  the  purchaser  and  was  permitted  to  recover  on  his 
antecedent  title* 

§  477.  The  same.  When  the  sheriff  seizes  property  upon 
an  execution  or  attachment,  and  it  is  replevied  from  him,  and 
afterwards  he  levies  on  and  takes  possession  of  it  by  virtue  of 
another  execution  or  attachment,  it  is  equivalent  to  a  return 
of  the  goods,  and  operates  as  a  revival  of  the  lien  of  the  fii'st 
process;  in  other  words,  the  lien  or  special  property  which  the 
officer  acquires  by  virtue  of  a  levy  of  process  and  seizure  of 
property,  is  not  divested  by  a  replevin  of  the  property  from 

'  Lockwood  v.  Perry,  9  Met.  440. 
«  Hunt  V.  Robinson,  11  Cal.  3G2. 

*  Cited  and  followed  in  Rives  v.  Wilborne,  6  Ala.  46. 

*  Lockwood  V.  Perry,  9  Met.  (Mass.)  440 ;  White  v.  Dolliver,  113  Mass.  402. 


EFFECT   OF   THE   WEIT.  263 

him;  he  is  so  far  regarded  as  the  owner  that  the  title  which 
the  first  process  conferred%n  him  exists,  notwithstanding  tlie 
replevin.  Should  the  property  come  again  into  his  possession 
by  the  levy  of  another  execution  or  attachment,  the  lien  of 
the  first  process  revives,  and  the  eifect  of  this  is  to  discharge 
the  securities.  1 

§  478.  The  same.  Illustrations  of  the  rule.  "Wliere  an  exe- 
cution from  the  State  Court  was  levied  by  the  sheriff  upon 
property  which  was  afterwards  claimed  by  a  stranger  to  the 
writ,  and  he  gave  bond  to  try  the  title,  (a  statutory  proceeding 
similar  in  principle  to  a  suit  in  replevin,)  and  the  goods,  while 
so  in  the  claimant's  possession,  were  levied  upon  by  an  execu- 
tion from  the  United  States  Court,  the  Supreme  Court  of  the 
United  States  held  that  the  property,  though  in  the  possession 
of  the  claimant,  was  in  the  custody  of  the  State  Court,  and 
that  the  levy  of  tlie  marshal  was  erroneous;  that  wliile  the 
propert}'-  was  in  the  possession  of  the  claimant  who  had  given 
bond,  his  custody  was  the  custody  of  the  court  where  his  claim 
was  pending;  that  the  marshal  had  no  more  right  to  levy  upon 
it  than  if  it  had  been  in  the  actual  possession  of  the  sheriff 
on  execution  from  the  State  Court.^  A  New  York  case  held 
that  where  goods  seized  upon  execution  were  replevied  from 
the  sheriff  by  a  third  person,  that  the  lien  of  the  sherifi*  was 
gone;  or  rather,  that  the  plaintiff  in  replevin  took  all  the 
property  which  the  sheriff  had  by  his  fi.  fa.,  and  that  the 
property  could  not  again  be  taken  by  the  ofiicer  on  an  execu- 
tion against  the  defendant  in  the  first  execution. ^  But 
nothing  in  this  case  appears  to  conflict  seriously  with  the 
doctrine  in  Hunt  v.  Rohlnson^  or  Ilagan  v.  Lucas,  supra,  or 
the  case  of  BurTde  v.  Luce,  1  Comst,  (N^.  Y.)  163,  which  are 
authority  for  saying  that  the  right  acquired  by  the  plaintiff  in 
replevin  is  only  a  temporary  right;  that  when  that  right  has 
ceased  the  sheriff  may  retake  the  property  and  sell  it,  thus 

'  Hunt  «.  Robinson,  11  Cal.  273.  See  and  compare  Goodheart  c.  Bowen, 
2  Bradw.  (111.)  578. 

"  Hagan  ®.  Lucas,  10  Pet.  (U.  S.)  400.  This  principal  is  followed  in  Good- 
heart  v.  Bowen,  3  Bradw.  (111.)  578. 

Acker  ©.  Wliite,  25  Wend.  (N.  Y.)  614. 


2G4  THE  WErr. 

clearly  recognizing  the  revival  of  the  lien  of  the  sheriff. ^  Tlie 
doctrine  in  Uagan  v.  Lucas,  svpm,  is  clearly  recognized  in 
Alabama,  where  it  is  held  that  property  taken  upon  a  writ  of 
replevin  is  in  the  custody  of  the  law,  and  not  subject  to  other 
process  pending  the  suit.^ 

§  479.  The  same.  Observations  upon.  In  attempting  to 
draw  a  satisfactory  conclusion  from  these  cases  the  difficulty 
lies  in  the  fact,  that  in  the  early  cases  the  plaintiff  in  replevin 
was  always  regarded  as  the  owner  of  the  property.  The  writ 
did  not  lie  to  try  title,  but  to  enable  a  plaintiff  whose  goods 
had  been  wrongfully  distrained  to  recover  them.  Of  course, 
in  all  such  cases,  the  owner  then,  as  now,  took  his  own  prop- 
erty. The  lien  of  the  distrainer  was  gone.'  The  owner 
might  sell  and  convey  a  good  title  as  though  they  had  never 
been  taken  from  him.  A  large  majority  of  the  cases,  however, 
now  are  brought,  not  for  the  purpose  of  recovering  a  pledge 
wrongfully  distrained,  but  for  the  purpose  of  testing  ownership; 
this  is  the  principal,  if  not  the  only  question  in  dispute;  and 
it  does  not  bj'  any  means  follow  that  the  plaintiff  who  acquires 
possession  of  goods  by  means  of  his  writ  of  replevin  has  any 
title  to  the  property,^  and  if  he  has  no  title  he  can  convey 
none  by  sale.  He  is,  however,  invested  with  possession  and 
the  outward  eijsignia  of  ownership,  has  given  bond  to  his 
opponent,  which  in  contemplation  of  law  is  sufficient  to  indem- 
nify the  latter  against  loss,  whatever  may  be  the  result  of  the 
litigation,  or  whatever  may  become  of  the  subject  of  the  con- 
test. The  plaintiff  is  also  under  obligation  to  return  the  prop- 
erty if  he  fails  in  his  suit,  in  as  good  order  as  when  taken 
upon  his  writ,  or  to  pay  its  value  in  case  of  failure  to  do  so; 
with  these  responsibilities  he  has  the  right  to  use  all  reasonable 
means  to  protect  himself  from  loss.^ 

§  480.     The  same.     It  would,  therefore,  seem  that  in  cases 

J  See  M'Rae  v.  M'Lean,  3  Porter,  (Ala.)  138;  Evans  v.  King,  7  Mo.  411; 
Lockwwod  V.  Perry,  9  Met.  444. 

'  Rives  V.  Wilborne,  6  Ala.  45. 

3  Speer  v.  Skinner,  35  111.  290;  Woglam  v.  Cowperthwaite,  2  Dall.  68; 
Acker  v.  White,  25  Wend.  614;  BradyU  v.  Ball,  Bro,  Ch.  Ca.  427. 

*  Lovett  V.  Burkhardt,  44  Pa.  St.  174. 

•  Gordon  v.  Jenney,  16  3Iass.  469. 


EFFECT    OF    THE    WRIT.  265 

where  the  property  is  of  a  nature  sucli  as  will  bo  likely  to 
perish  or  seriously  diminish  in  value  within  tlie  time  which 
will  probably  be  required  for  proper  litigation,  the  plaintiff 
will  be  justified  in  selling,  consuming  or  disposing  of  it.  In 
case  he  does  not  do  so  the  fact  that  the  property  has  perished 
will  not  relieve  him  from  his  liability  on  the  bond.  So  in  cases 
where  the  property  in  dispute  consists  of  merchandise  valuable 
and  useful  only  for  pur])ose3  of  sale,  and  is  subject  to  constant 
fluctuations  in  value,  or  when  it  is  valuable  only  for  imme- 
diate consumption,  the  plaintiff  will,  without  doubt,  have  the 
riglit  to  put  it  to  the  use  for  which  it  was  properly  and  nat- 
urally adapted,  even  if  it  should  involve  its  sale  or  consump- 
tion. When  the  property  is  valuable  chiefly  for  use,  and  will 
not  be  likely  to  diminish  in  value-by  being  kept  until  the  liti- 
gation can  be  concluded,  the  plaintiff  ought  to  be  ready  to 
restore  it  to  the  defendant,  if  such  be  the  judgment  of  the 
court.  "While  there  seems  to  be  no  direct  authority  to  sustain 
this  doctrine,  it  is  in  entire  harmony  with  the  general  rules 
of  law  governing  such  questions;  and  unless  the  particular 
case  should  render  some  other  rule  more  apparently  just,  this 
will  doubtless  be  the  holding  of  the  court. ^ 

'  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  117;  Gordon  v.  Jenney,  16  Mass.  469. 
In  Ohio  the  statute  formerly  made  no  provision  for  a  return;  the  plaintiff 
obtaining  possession  by  means  of  the  writ,  took  all  the  title  the  defendant 
had.  The  bond  was  supposed  to  protect  the  defendant  from  loss.  Jennings 
V.  Johnson,  17  Ohio,  154;  Smith  v.  McGregor,  10  Ohio  St.  470.  This  rule, 
however,  is  now  changed  by  statute. 


266 


THE  RETURN. 


CHAPTER  XYI. 


THE  RETQRN. 


Section.    | 

The  return.   General  principles  481 

Tiie  same.  Return  must  be 
claimed 483 

PInintitF  not  liable  for,  unless 
so  ordered  by  the  court .        .  483 

Duty  of  plaintiff  when  return  is 
adjudged         ....  484 

Return  ordered  only  where  it  ap- 
pears just     ....  485 

Return  may  be  adjudged  to  one 
of  several  defendants     .        .  486 

Adjudged  only  when  the  defend- 
ant claims  it    .        .        .        .  487 

The  same.  Exceptions  to  the 
rule 488 

Formal  prayer  for  return  not  es- 
sential       489 

The  same  in  justice  court.        .  490 

Judgment  for  value  rendered 
only  where  a  return  would  be 
proper 491 

When  a  defendant  pleads  prop- 
erty in  a  third  person     .        .  402 

The  same 493 

Judgment  for  return  does  not 
settle  the  question  of  title      .  494 

Such  judgment  generally  fol- 
lows  a  verdict  for  the  defend- 
ant   495 


Section. 
The  rights  of  the  parties  at  the 
time  the  return  is  asked  will 

govern 496 

The  same.     Illustrations  of  the 

rule 

The  same 

Never  ordered  unless  it  appears 
that  the  plaintiff  obtained  de- 
liverance upon  the  writ. 
Return  of  the  young  of  animals 

born  after  the  suit  begun 
Where  defendant  avoids   trial 

upon  the  merits  . 
The  same    .        .        .        •        . 
The  general  rule  stated 

The  same 

Liquors  sold  to  enable  vendee 

to  violate  the  laws  . 
When  the  parties  are  joint  ten- 

ants 

Where  the  property  is  lost  or 

destroyed  .... 

When   the  question   of  return 

should  be  determined     . 
Return    or    delivery   in   States 

adopting  the  code  . 
The   writ  of   return   must  de- 
scribe the  goods      .        , 


497 
498 


499 

500 

501 
503 
503 
504 

505 

506 

507 

508 

509 

510 


§481.    The  return.    General  principles.    As  has  been  stated, 
both  parties  in  replevin  are  called  actors  or  plaintiffs.  ^     When 


Ajite,  §  21. 


NOT   LIABLE   FOK    UNLESS   ORDERED.  267 

the  action  was  for  a  distress,  tlie  defendant,  by  avowing  and 
demanding  a  return,  was  looked  upon  as  suing  for  the  riglit  to 
make  the  distress.  In  other  cases,  where  he  claimed  the  prop- 
erty and  demanded  a  return,  his  claim  was  regarded  as  a  kind 
of  cross-action  for  the  recovery  of  the  property.  Upon  the 
decision  of  this  question  depended  the  possession  of  the  prop- 
erty. It  is  therefore  one  of  the  most  important  arising  in 
this  proceeding. 

§  482.  The  same.  Return  must  be  claimed.  The  issue  as 
to  whether  a  return  shall  be  made  is  not  always  presented 
in  the  pleading;  but  wliere  it  is,  the  action  is  not  determined 
until  the  final  judgment  of  the  court  upon  it.i  And  to  en- 
able the  court  to  determine  the  respective  rights  of  parties, 
the  plaintiff  is  not  allowed  to  dismiss  his  suit,  so  as  to  prevent 
a  hearing  or  a  decision  as  to  the  proprietj^  of  a  return,  or  as  to 
the  value  of  the  property,  or  as  to  an  assessment  of  damages, ^ 
When  the  plaintiff  does  so  dismiss  his  suit,  the  defendant  may 
retain  it  or  have  it  reinstated  for  the  purpose  of  having  these 
issues  determined.  In  such  case  the  plaintiff  is  regarded  as  in 
def\iult.3 

§  483.  PlaintiflF  not  liable  for,  unless  so  ordered  by  the  court. 
Whatever  judgment  the  court  may  render,  whether  against  the 
plaintiff,  for  costs,  or  costs  and  damages,  he  is  under  no  obli- 
gation to  return  the  goods  delivered  to  him  upon  the  writ, 

>  Broom  v.  Fox,  2  Yeates,  (Pa.)  530;  Branch  v.  Branch,  5  Fla.  447;  City 
of  Bath  V.  Miller,  53  Me.  816. 

2  Berghoff  v  Heckwoll,  26  Mo.  512;  Raney,  Admr.,  ».  Thomas,  45  Mo. 
112;  Collins  v.  Hough,  26  Mo.  150;  Broom  v.  Fox,  2  Yeates,  (Pa.)  530; 
Waldman  v.  Broder,  10  Cal.  379 ;  Studdert  v.  Hassell,  6  Humph.  (Tenn.)  J 37 ; 
Mikesill  v.  Chaney,  6  Port.  (Ind.)  52;  Noble  v.  Epperly,  6  Port.  (Ind.)  415; 
Hall  V.  Smith,  10  Iowa,  45. 

2  Wilkins  v.  Treynor,  14  Iowa,  393 ;  Kimmel  v.  Kint,  2  Watts.  (Pa.)  432. 
But,  see  Wiseman  v.  Lynn,  39  Ind.  254,  where  it  is  said,  if  the  suit  be  dis- 
missed before  hearing,  there  can  be  no  judgment  for  return.  The  bond, 
however,  would  be  liable.  See,  also,  Sanderson  v.  Lace,  1  Chand.  (Wis.) 
231.  In  Alabama,  when  the  plaintiff  consented  to  a  nonsuit,  the  court  said 
the  remedy  was  upon  the  bond,  it  having  no  data  from  which  to  render 
judgment  beyond  the  formal  one  for  costs.  Savage  v.  Gunter,  32  Ala.  469. 
If  the  suit  be  dismissed,  the  order  for  a  return  must  be  made  at  the  same 
term;  otherwise  the  court  cannot,  at  a  subsequent  term,  change  its  records 
and  order  a  return  to  the  defendant.    Lill  v.  Stookey,  72  111.  495. 


2G8 


THE   EETURN. 


unless  siicb  be  the  order  of  the  court. ^  But  it  does  not  follow 
that  tlie  plaintiff  may  not  in  some  cases  lind  it  to  his  advan- 
tage to  return  them  without  the  order  of  the  court;  as,  for 
instance,  the  order  for  a  return  may  not  have  been  made, 
although  the  plaintiff  has  failed  in  his  action,  i.  e.,  has  not 
prosecuted  it  with  success,  thus  rendering  him  liable  to  an 
action  upon  the  bond.  In  such  case,  unless  the  plaintiff  is 
able  to  make  good  his  defense  to  suit  upon  the  bond,  it  may 
sometimes  be  advisable  to  restore  the  property,  even  though 
he  at  once  replevy  it  again,  as  the  restoration  of  the  property, 
and  its  acceptance  by  the  defendant,  would  go  in  mitigation 
of  damages  in  suit  upon  the  bond. 

§  484.  Duty  of  plaintiff  when  return  is  adjudged.  If  the 
court  rendei'S  judgment  for  a  return,  the  duty  is  imposed  upon 
the  plaintiff  to  at  once  return  the  goods.  This  duty  is  not  the 
passive  one  of  permitting  the  defendant  to  take  his  goods,  or 
to  surrender  them  to  the  sheriff'  upon  the  writ  of  retorno,  but 
he  is  required  to  redeliver  them  to  the  defendant,^  and  in  as 
good  order  as  when  taken.  ^ 

§  485.  Return  ordered  only  where  it  appears  just.  The 
power  to  order  a  return  is  exercised  upon  the  idea  that  a  wrong- 
ful taking  of  the  goods  from  the  defendant,  even  though  under 
the  authority  of  legal  process,  does  not  deprive  the  owner  of 
his  title  or  right  of  possession.*  This  power  is  always  exer- 
cised by  the  court  in  the  furtherance  of  justice,  and  to  protect 
the  rights  of  the  parties;^  otherwise,  property  might  be  taken, 

'  Clark  V.  Norton,  G  Minn.  415;  Ladd  v.  Prentice,  14  Conn.  117;  Way  v. 
Barnard,  36  Vt.  366. 
2  Parlier  ®.  Simmonds,  8  Met.  207. 

*  Berry  v.  Hoett'uer,  56  Me,  171 ;  Washington  Ice  Co.  v.  Webster,  63 
Me.  363;  Allen  v.  Fox,  51  N.  Y.  562.  The  writ  of  return  cannot  issue  ex. 
cept  to  the  sheriff  of  the  county  where  judgment  is  rendered,  Rathbuu  v. 
Ranney,  14  Mich.  383.  The  plaintiff  cannot  complain  of  the  omission  to 
award  a  return.  If  the  jury  lind  for  the  defendant,  and  a  return  is  errone- 
ously omitted,  he  is  the  only  party  injured,  and  he  alone  can  complain. 
Branch  v.  Wiseman,  51  Ind.  1. 

*  See  dissenting  opinion  of  Sutlifp,  J.,  in  Smith  «.  McGregor,  10  Ohio 
St.  470;  Kerley  v.  Hume,  3  T.  B.  Mon.  (Ky.)  181, 

'Fowler  o.  Hotlman,  31  Mich.  221;  Bartlett  v.  Kidder,  14  Gray,  450; 
Salkold  V.  Skclton,  Cro.  Jac,  519;  Plant  v.  Crane,  7  Port.  (Ind.)  486;  Saffell 


EETUEN    MAT   BE    ADJUDGED   TO    ONE.  2G9 

without  any  process  to  restore  it,i  or  the  plaintiff  might  be 
required  to  deliver  his  goods  to  the  defendant,  when  the  de- 
fendant reallj  had  no  title  or  right  to  possess  them,  when  such 
delivery  would,  in  fact,  amount  to  a  loss  of  his  goods.  An- 
other suit  in  replevin  miglit  be  permitted  on  antecedent  title, 
but  a  right  to  another  suit  is  but  a  meagre  award  to  a  suitor 
in  the  right.  Even  after  a  general  verdict  for  defendant,  or  a 
judgment  that  the  writ  be  abated,  the  order  for  return  dues 
not  follow  as  a  matter  of  course.  AVhether  it  be  rendered  or 
not  involves  an  inquiry  into  and  a  decision  upon  the  merits. 
It  is  rendered  by  the  court  only  as  the  rights  of  the  parties 
require. 2  Where  the  verdict  is  for  defendant  for  a  sum  of 
money,  such  a  finding  does  not  entitle  him  to  a  judgment  for 
return.  All  that  can  be  inferred  is,  that  the  plaintiff  is  entitled 
to  the  property  on  paying  the  sum  awarded.  ^  "When  it  ap- 
pears that  the  defendant  never  had  a  right  to  the  possession,  a 
return  will  not  be  awarded.  It  would  be  absurd  that  one 
should  acquire  rights  by  successfully  defending  a  suit,  upon 
the  ground  that  he  has  no  interest  in  the  matter  in  dispute.'* 
§  486.  Return  may  be  adjudged  to  one  of  several  defendants. 
Where  there  are  several  defendants,  the  court  may  adjudge  a 
return  to  one  of  them,  and  refuse  it  to  the  others,  or  the  judg- 

V.  Wash,  4  B.  Mon.  (Ky.)  92;  City  of  Bath  v.  Miller,  53  Me.  317;  Wheeler 
V.  Train,  4  Pick.  168. 

'  Mikesill  v.  Chaney,  6  Port.  (Ind.)  53;  Lowe  ??.  Brigham,  3  Allen,  (Mass.) 
430. 

2  Tuck  V.  IMoses,  58  Me.  474:  Whitwell  v.  Wells,  24  Pick.  33;  Lowe  v. 
Brigham,  3  Allen,  430;  Goodheart  v.  Bowen,  2  Bradw.  (111.)  578;  Bourk  y. 
Riggs,  38  111.  320;  Smith  v.  Auraad,  10  S.  &  R.  (Pa.)  92;  Sattell  v.  Wash,  4 
B.  Mon.  92. 

•*  Hunt  V.  Bcrnett,  4  G.  Greene,  (Iowa,)  512.  See  Hanford  v.  Obrecht,  38  111. 
493;  Hanford  v.  Obrecht,  49  111.  146.  Judgment  may  be  simply  for  costs. 
Wheeler  n.  Train,  4  Pick.  1G8;  Ingraham  v.  Martin,  15  Me.  373;  Miller  v. 
Moses,  56  Me.  123. 

*  Hall  V.  White,  106  Mass.  600;  Whitwell  v.  Wells,  24  Pick.  83;  Snelgar 
V.  Hewston,  Cro.  Jac.  611.  Goods  cannot  be  returned  to  a  person  from 
whom  they  were  never  taken.  Richardson  v.  Reed,  4  Gray,  441.  "When 
plaintiff  is  nai-suited  because  the  defendant  never  had  possession,  the  de- 
fendant  is  not  entitled  to  return  a  judgment  for  value."  Gallagher  v. 
Bishop,  15  Wis.  377. 


270  THE   RETURN. 

ment  may  be  in  favor  of  all;i  or  tlie  court  may  award  part  of 
the  property  to  one  of  the  defendants,  and  part  to  another,  or 
to  the  plaintiff,  as  the  rights  of  the  parties  shall  appear. 

§  4S7.  Adjudged  only  when  the  defendant  claims  it.  With- 
out repeating  what  has  been  said  elsewhere,  and  without  dis- 
cussing the  question  of  pleadings,  the  reader  will  understand 
that  a  return  cannot  be  awarded  unless  the  pleadings  are  framed 
for  that  purpose.  The  defendant  must  set  np  some  affirmative 
right  upon  his  part  to  have  the  goods  delivered  to  him,  or  a 
return  will  not  be  adjudged.  Thus,  if  the  defendant  sets  up 
as  his  only  defense  that  he  did  not  take  the  goods,  this  virtu- 
ally admits  the  plaintiff's  right  to  them,  and  upon  a  verdict 
for  defendant  in  such  case  a  return  will  not  be  awarded. ^  The 
prayer  for  a  return  is  in  the  nature  of  a  cross  action,  in  which 
the  defendant  is  suing  for  a  return  of  the  goods  and  for  dam- 
ages.5  The  same  principles  govern  the  plea  of  non  detinet, 
which  puts  in  issue  only  the  detention;  upon  such  plea  no 
return  will  be  awarded. ■* 

§  488.  The  same.  Exceptions  to  the  rule.  In  Indiana  it  is 
held  that  an  officer  who  files  general  denial  only,  may  prove 
property  in  himself  as  an  officer  by  showing  that  he  holds  the 
property  under  the  levy  of  process,  and  that  the  property  is 

*  "Woodburn  c.  Chamberlain,  17  Barb.  446 ;  Wells  v.  Johnson,  16  Barb. 
875. 

2  Chambers  v.  Waters,  7  Cal.  390 ;  Trotter  v.  Taylor,  5  Blackf.  431 ;  Wright 
V.  Mathews,  2  Blackf.  187;  Douglass  v.  Garrett,  5  Wis.  88;  Moulton  v.  Bird, 
31  Me.  297;  Ely  v.  Ehle,  3  Corast.  (N.  Y.)  510;  Simpson  i}.  M'Farland,  18 
Pick.  427;  Powell  -y.  Hinsdale,  5  Mass.  343;  Seymour  v.  Billings,  12  Wend,, 
286;  Pratt  v.  Tucker,  67  111.  346;  Bourk  v.  Riggs,  38  111.  331;  Mills  v. 
Gleason,  21  Cal.  274;  Anstice  v.  Holmes,  3  Denio,  244;  Harrison  v.  M'ln- 
tosh,  1  Johns.  380;  Rogers  v.  Arnold,  12  Wend.  30;  Prosser  v.  Woodward, 
21  Wend.  205;  Coits  v.  Waples,  1  Minn.  134;  Finley  v.  Quirk,  9  Minn.  194; 
Cooper  V.  Brown,  7  Dana,  (Ky.)  333. 

3  Gould  V.  Scannell,  13  Cal.  430;  Bonner  v.  Coleman,  3  B.  Mon.  (Ky.)  464; 
Smith  V.  Snyder,  15  Wend.  324;  Berghoff  y.  Heckwolf,  26  Mo.  512;  Brown 
V.  Stanford,  23  Ark.  78.  But,  see  Matlock  v.  Straughn,  21  Ind.  128;  Kcrley 
v.  Hume,  3  T.  B.  Mon.  (Ky.)  181. 

*  See  pleading  non  cepit  and  non  detinet.  Bemus  v.  Beekman,  3  Wend. 
G67;  Smith  v.  Snyder,  15  Wend.  324;  Pierce  v.  Van  Dyke,  6  Hill,  613;  Vose 
V.  Hart,  13  111.  378;  Conner  v.  Comstock,  17  Ind.  93;  Haaford  v.  Obrecht, 
38  111.  493. 


FORMAL    PEAYEU    FOB   RETURN    NOT   ESSENTIAL.  271 

owned  bj  the  defendant  therein.  This  rule  will  probablj  be 
followed  in  States  having  a  similar  code  of  practice.^  By 
statutory  provisions  in  some  of  the  States  the  plea  of  noii 
cepit  or  non  detinet  puts  in  issue  not  only  the  taking  and 
detention,  but  the  right  of  property.  In  such  case  a  verdict 
for  the  defendant  ought  to  entitle  him  to  a  judgment  for  return. 2 

§  489.  Formal  prayer  for  return  not  essential.  A  simple 
claim  for  a  return  in  the  answer  is  not  sufficient.  It  should 
state  facts  as  to  the  ownership,  or  right  of  possession,  which 
justify  an  av^ard  of  return. ^  But  a  formal  prayer  for  return 
is  not  essential.  The  averment  of  title  by  the  defendant,  or  a 
plea  setting  up  ownership  in  a  third  person  avering  a  right 
of  possession,  with  a  formal  traverse  of  the  plaintiif 's  rights, 
will  be  sufficient.*  "When  the  pleas  were:  1st,  nt)n  cepet;  2d, 
non  detinet;  3d,  goods  not  the  property  of  the  plaintiif;  4th, 
property  in  the  defendant;  5th,  property  in  a  third  person; 
and  where  the  verdict  was,  "  "Wc  find  the  issues  for  the  defend- 
ant," this  was  equivalent  to  finding  all  the  issues  for  the 
defendant,  and  a  return  was  properly  awarded.  ^  AVhen  the 
pleas  were:  non  cepit,  plea  of  property  in  defendant,  and  in  a 
third  person;  the  verdict  was,  "  J^ot  guilty;"  this  was  regarded 
as  not  responsive  to  any  plea  except  non  cepit;  held,  a  return 
eould  not  be  awarded.^ 

§  400.  The  same.  In  justice  court.  In  an  appeal  from  a 
justice  court  where  the  pleadings  were  oral,  and  where  thg 
jury  found  this  verdict:  "We,  the  jury,  find  the  defendant 
guilty,"  it  was  held  equivalent  to  a  finding  of  property  in  the 
plaintiff.'' 

§  491.  Judgment  for  value  rendered  only  where  a  return 
■would  be  proper.     When   the  property  itself  cannot  be  had, 

'  Branch  v.  Wiseman,  51  Ind.  1. 

2  Ford  ».  Ford,  3  Wis.  399 ;  Sparks  v.  Heritage,  45  Ind.  66 ;  Noble  v. 
Epperly,  6  Ind.  414. 

2  Lewis  V.  Buck,  7  Minn.  105. 

«  King  «.  Kamsay,  13  111.  623;  Underwood  b.  White,  45  111.438;  Chan- 
dler v.  Lincoln,  53  111.  76. 

6  Underwood  v.  White,  45  111.  438. 

«  Hanford  v.  Obrecht,  38  111.  493. 

'  Jarrard  v.  Harper,  42  111.  457. 


272  THE    RETUKN. 

judgment  for  the  value  of  the  property  is  sometimes  awarded. 
In  such  case,  the  judgment  for  value  is  never  rendered  to  a 
defendant  unless  he  sliovv  himself  entitled  to  a  return.  Unless 
by  his  pleadings  he  has  claimed  the  property,  and  asked  a 
return,  judgment  for  value  would  be  erroneous. i 

§  492.  When  the  defendant  pleads  property  in  a  third 
person.  The  defendant  in  this  action  may,  and  frequently 
does,  plead  property  in  himself,  and  also  in  a  third  person, 
traversing  the  plaintiff's  right.  If  the  goods,  in  such  case, 
belong  to  a  third  person,  the  plaintiff  being  unable  to  show 
title  in  himself,  must  fail.  When  the  defendant  succeeds  npon 
the  plea  of  property  in  himself,  he  is  entitled  to  have  the  prop- 
erty restored  to  him;  the  judgment  is  fro  retorno  hahendo.^ 
But  when  he  succeeds  upon  his  plea  of  property  in  a  third 
person,  it  is  sometimes  a  question  whether  he  has  a  right  to 
have  the  property'  returned,  without  in  some  way  connecting 
himself  with  the  rights  of  that  person.  There  arc  cases  upon 
both  sides  of  this  question.  A  very  large  number  hold  that 
the  defendant  who  is  successful  upon  such  a  plea  is  entitled  to 
a  return  of  the  property  without  in  any  way  connecting  him- 
self with  the  title  of  such  third  person, ^  the  theory  being  that 
the  defendant,  from  whom  the  'goods  were  wrongfully  taken, 
ought,  in  justice,  to  be  put  iu  as  good  condition  as  he  was 
before  the  taking.'* 

>  Gould  v.  Scannell,  13  Cal.  430.  See  Bemus  v.  Boekman,  3  Wend.  667; 
Bourk  V.  Riga:s,  38  111.  320;  Vose  v.  Hart,  12  111.  378;  Johnson  v.  Howe,  3 
Gilm.  343;  Mills  v.  Gleason,  21  Cal.  280. 

*  Landers  v.  George,  40  Ind.  160;  Easton  v.  Worthington,  5  S.  &.  R.  (Pa.) 
133;  Walpole  c.  Smith,  4  Blackf.  305;  Constantine  v.  Foster,  57  111.  38; 
King  V.  Ramsay,  13  111.  610;  Underwood  v.  White,  45  111.  438;  Quincy  v. 
Hall,  1  Pick.  357;  Waldman  o.  Broder,  10  Cal.  379, 

3  Ingrahara  v.  Hammond,  1  Hill,  (N.  Y.)  353,  citing  many  cases;  Prosser 
f).  Woodward,  31  Wend.  309;  Morss  v.  Stone,  5  Barb.  516;  Anderson  v.  Tai- 
cott,  1  Gilm.  371;  Quincy  v.  Hall,  1  Pick.  357;  Hunt  v.  Chambers,  1  Zab. 
637 ;  Johnson  n.  Carnley,  6  Seld.  (N.  Y.)  576 ;  Rickner  v.  Dixon,  2  G.  Greene, 
(Iowa,)  592;  Hopkins  v.  Shrole,  1  Bos.  «fc  P.  382;  Butcher  v.  Porter,  1  Salk. 
94;  Anon.  6  Mod.  103;  Allen  v.  Darby,  1  Show,  97;  Hoeffuer  c.  Stratton,  57 
Me.  300.    See  Tuley  v.  Mauzey,  4  B.  Mon.  (Ky.)  5. 

*  Butcher  v.  Porter,  Carth,  242 ;  Same  v.  Same,  Show.  400 ;  Salkold  v. 
Skelton,  Cro.  Jac.  519;  Harrison  v.  M'Intosh,  1  Johns.  384. 


DOES   NOT   SETTLE   TITLE.  273 

§  493.  The  same.  But  a  large  number  of  cases  hold  that 
return  will  not  be  awarded  to  the  defendant  upon  a  plea  of 
property  in  a  stranger,  unless  he  show  he  is  in  some  way 
responsible  to  such  stranger,  or  in  some  way  connect  himself 
with  the  title  of  the  property. i  A  proper  deduction  from 
these  conflicting  cases  seem  to  be,  that  when  the  defendant  is 
a  mere  trespasser  he  cannot  set  up  title  in  a  third  person  to 
defeat  the  right  of  a  plaintiff.  The  title  in  such  third  person 
which  is  necessary  to  defeat  a  plaintiif  showing  right  to  posses- 
sion must  be  something  that  goes  to  destroy  the  plaintiff's  right 
to  recover,  or  such  as  would  defeat  an  action  of  trespass  if 
brought  in  place  of  replevin; 2  and  this  unquestionably  was 
the  law  at  a  very  early  time.* 

§  494.  Judgment  for  return  does  not  settle  the  question  of 
title.  The  action  of  replevin  is  frequently  brought  to  try  the 
question  of  the  right  to  possession  only,  and  in  such  cases  a 
verdict  and  judgment  are  not  evidence  of  title  in  the  success- 
ful party.  But  when  the  title  is  in  issue,  and  that  question 
heard  and  determined,  the  judgment,  of  course,  is  conclusive 
on  the  parties,  and  all  claiming  under  them.*  The  judgment 
for  a  return,  therefore,  does  not  settle  the  question  of  owner- 
ship, unless  that  question  was  presented  and  tried.  When, 
therefore,  the  action  is  dismissed,  or  where,  for  any  cause,  ex- 
cept a  decision  upon  the  merits,  a  judgment  for  return  is  ren- 
dered, the  plaintiff  may  return  the  goods,  and  may  replevy 
again  on  his  original  title.^  The  statute  of  Marlbridge,  which 
prevented  such  replevins,  except  upon  a  writ  of  second  deliv- 
erance, is  local  to  Great  Britain,  and  does  not  apply  in  this 
country." 

'  Dozier  v.  Joj'ce,  8  Port.  (Ala.)  303;  Duncan  v.  Spear,  11  Wend.  54; 
Brown  v.  Webster,  4  N.  H.  500 ;  Wilkerson  v.  McDougal,  48  Ala.  518 ; 
Rogers  v.  Arnold.  12  Wend.  80. 

■^  See  Van  Namee  v.  Bradley,  69  111.  300,  a  leading  case  on  this  subject. 

3  Butcher  v.  Porter,  1  Salk.  93;  Bro.  Abr.  title  Retorno  Av.,  etc.,  28; 
Mitchell  V.  Alestree,  Vent.  249 ;  Rast.  Ent.  554. 

*  Seldner  v.  Smith,  40  Md.  603;  Wallace  v.  Clark,  7  Blackf.  299. 

»  Walbridge  v.  Shaw,  7  Cush.  560;  Warner  v.  Matthews,  18  III.  83;  Child 
V.  Child,  13  Wis.  20. 

« Daggett  V.  Robins,  2  Blackf.  417. 
18 


274  THE    RFIURN. 

§  495.  Such  judgment  generally  follows  a  verdict  for  tho 
defendant.  The  principles  of  the  common  law  incline  to  favor 
a  return  in  all  cases  when  the  plaintiff  has  obtained  delivery 
of  the  goods  npon  his  writ,  and  for  any  cause  failed  to  prose- 
cute his  suit  to  a  successful  issue;  and  these  principle  obtain 
generally  in  all  the  States.  ^  This  was  on  the  presumption  that 
when  the  plaintiff  failed  in  his  suit,  the  defendant  was  enti- 
tled to  have  the  distress.  The  rule  in  this  country  may  be 
stated,  that  when  the  plaintiff  fails  in  his  suit,  the  presump- 
tion is  that  the  goods  belong  to  the  defendant,  and  ought  to  be 
returned  to  him.  But  the  plaintiff  may  show  cause,  (if  he 
is  able,)  why  the  return  should  not  be  made;  and  unless  such 
cause  be  shown,  the  order  for  return  usually  follows,  as  a  matter 
ot  course,  the  burden  of  proof  being  upon  the  plaintiff.^  Even 
the  insolvency  of  the  defendant,  occurring  after  suit  brought, 
does  not  prevent  him  from  having  an  order  for  a  return.  The 
fact  that  the  title  he  once  had  has  passed  to  his  assignee  cannot 
be  Bet  up  by  any  other  person  to  defeat  his  rights. ^  In  Ohio, 
formerly,  the  defendant  was  never  entitled  to  a  return;  but  if 
successful,  was  entitled  to  judgment  for  the  value.  The  -writ 
of  return  was  unknown  to  the  laws  in  that  State,  the  bond 

'  When  the  defendant  claims  property,  and  plaintiff  takes  a  non-suit,  re- 
turn will  be  awarded.  Stat.  Westm.  2  C.  2;  Timp  v.  Dockham,  32  Wis.  153. 
When  a  party  brings  replevin  in  a  Stale  court  to  recover  property  seized 
from  him  on  execution  from  a  federal  court,  the  replevin  should  be  dis- 
missed, and  an  order  given  for  a  return  of  the  goods.  Booth  v.  Ablcman, 
16  Wis.  460;  Freeman  v.  Howe,  24  How.  (U.  S.)  450;  Taylor  v.  Carryl,  20 
How.  584;  Peck  v.  Jenness,  7  How.  (U.  S.)  612-621;  Lowe  v.  Brighara,  3 
Allen,  429. 

2  Barry  «.  O'Brien,  103  Mass.  521 ;  Anderson  v.  O'Laughlin,  1  Blake,  (Mont.) 
81 ;  Dahler  v.  Steele,  1  Blake,  (Mont.)  290;  Salkold  v.  Skelton,  Cro.  Jac.  519 
Presgrave  v.  Saunders,  2  Ld.  Kaym.  984;  Clark  v.  Adair,  3  Har.  (Del.)  116 
Vernon  B.  Wyman,  1  H.  Bla.  24;  Mikesill  v.  Chaney,  6  Port.  (Ind.)  52 
Simpson  v.  McFarland,  18  Pick.  431 ;  Mason  v.  Richards,  12  Iowa,  73 
Chadwick  V.  Miller,  6  Iowa,  38;  Jansen  v.  Etfey,  10  Iowa,  227;  Quincy -u 
Hall,  1  Pick.  357;  Timp  «.  Dockham,  32  Wis.  154;  Dawson  ??.  Wethorbee 
2  Allen,  462;  Wheeler  v.  Train,  4  Pick.  168;  Allen  v.  Darby,  1  Sliow.  97 
Smith  V.  Aurand,  10  S.  &,  R.  (Pa.)  92;  Phillips  «.  Harriss,  3  J.  J.  Marsh.  122 
1  Ch.  Plea.  162;  Fleet  v.  Lockwood,  17  Conn.  233. 

8  Hallett  V.  Fowler,  10  Allen,  37 ;  Hallett  v.  Fowler,  8  Allen,  93. 


EIGHTS   OF    THE   PARTIES.  275 

being  supposed  to  represent  the  property,  which  was  regarded 
as  tra:isferred  by  the  writ.' 

§  496.  The  rights  of  the  parties  at  the  time  the  return  is 
asked,  will  govern.  Replevin  differs  somewhat  from  other  ac- 
tions, in  tliis,  that  the  conrt  will  inquire  into  the  conditions  of 
the  title  to  the  property,  after  the  suit  was  begun,  down  to  the 
time  the  judgment  for  possession  is  asked.  This  does  not 
chanore  the  rule  tliat  the  facts  existino^  at  the  time  the  suit  was 
begun  govern  the  rights  of  the  parties  at  the  trial  ;2  but  when 
the  property  remains  to  be  disposed  of,  the  court  will  inquire 
into  the  state  of  facts  existing  at  the  time  the  order  for  a  return 
is  asked.  It  it  appears  that  a  change  in  ownership  or  right 
of  possession  has  occurred  since  the  beginning  of  the  suit,  as 
by  the  expiration  of  a  lease,  or  the  termination  of  some  lim- 
ited interest,  so  that  the  property  or  right  of  possession  vests 
in  the  defendant,  a  return  will  not  be  awarded,  notwithstand- 
ing the  title,  as  it  stood  at  the  commencement  of  the  suit, 
might  have  been  otherwise.^  As  to  whether  a  return  will  be 
ordered  where  the  plaintiff  fails  to  prove  a  demand  for  the 
goods  before  bringing  suit,  and  for  that  reason  judgment  is 
against  him,  is  discussed  under  the  head  of  demand  to  which 
the  reader  is  referred.* 

§  497.  The  same.  Illustration  of  the  rule.  Where  the 
defendant  was  successful,  and  moved  for  a  return  of  the  prop- 
erty, the  plaintifi  objected,  upon  the  ground  that  since  the 
commencement  of  the  suit  the  defendant's  title  had  expired, 
it  appeared  that  the  facts  which  the  plaintiff  relied  upon  to 
sustain  his  objection  were  known  to  him  at  the  time  of  the 

1  Smith  V.  McGregor,  10  Ohio  St.  470;  Williams  v.  West,  2  Ohio  St.  87. 
The  statute,  however,  has  changed  this.  As  to  the  rule  in  Pennsylvania, 
see  Gibbs  v.  Bartlett,  2  W.  i&  S.  34.  And  in  Alabama,  see  Savage  v  Gunter, 
33  Ala.  469. 

«  Johnson  v.  Neale,  6  Allen,  (Mass.)  229. 

3  Ingraham  v.  Martin,  15  Me.  373 ;  Davis  v.  Harding,  3  Allen,  303 ;  Mar- 
tinw.  Bayley,  1  Allen,  383;  Whitwell  ».  Wells,  34  Pick.  33;  Walpole  v. 
Smith,  4  Blackf.  306;  Dawson  v.  Wetherbee,  3  Allen,  461;  Simpson  v. 
M'Farland,  18  Pick.  430;  Collins  v.  Evans,  15  Pick.  63. 

*  See  §  373,  et  seq. 


2TG  THE   KETURN. 

trial  of  the  replevin  suit,  the  court  said  it  was  to  late  to  inter- 
pose them  for  the  purpose  of  defeating  a  return. ^ 

§  498.  The  same.  The  technical  correctness  of  this  ruling 
will  not  be  questioned.  The  rule  is  very  clear  that  if  at  the 
time  the  judgment  for  return  is  asked,  the  property  has  be- 
come vested  in  the  plaintiff,  even  tliough  the  defendant  had  a 
right  to  the  possession  when  the  suit  was  begun,  and  though 
he  have  a  verdict  and  judgment  in  his  favor  lor  costs,  he  can- 
not have  a  return.  ^  When  plaintiff  had  leased  the  property, 
and  the  lease  had  not  expired  when  the  suit  was  begun,  but 
had  expired  at  the  time  of  the  trial,  the  successful  defendant 
was  entitled  to  costs,  but  not  to  a  return,  as  the  title  at  the 
time  the  return  was  asked  was  in  the  plaintiff. ^ 

§  499.  Never  ordered  unless  it  appears  that  the  plaintiff  ob- 
tained deliverance  upon  the  writ.  A  return  can  never  be 
adjudged  unless  it  appear  that  the  plaintiff  has  obtained 
deliverance  of  the  property  by  virtue  of  his  writ.  In  States 
where  the  defendant  is  permitted  by  statute  to  retain  posses- 
sion of  the  goods  upon  giving  bond,  a  return  does  not  follow 
as  a  matter  of  course  upon  a  finding  of  the  issues  in  his  favor 
as  to  ownership  or  possession ;  such  a  verdict  is  no  evidence 
that  the  goods  were  delivered  to  the  plaintiff.  The  presump- 
tion would  be  that  they  remained  with  the  defendant;  judgment 
upon  these  issues,  therefore,  should  not  include  a  return  until 
it  be  shown  that  the  plaintiff  obtained  deliverance  of  the 
goods  upon  his  writ.*  So,  when  the  judgment  was  for  a  return 
of  property  described  in  the  writ,  and  it  appeared  from  the 
officer's  return  that  all  the  property  was  not  taken  and  delivered 
to  the  plaintiff  upon  the  writ,  the  court  reversed  the  judgment, 
saying  plaintiff  could  not  be  required  to  return  more  than  came 
into  his  possession  upon  the  writ,  and  its  increase. ^ 

'  McNea]  v.  Leonard,  3  Allen,  (Mass.)  268. 

«  Simpson  v.  McFarland,  18  Pick.  431;  O'Connor  v.  Blake,  29  Cal.  313; 
Wheeler  v.  Train,  4  Pick.  168. 

2  Collins  V.  Evans,  15  Pick.  65;  Allen  v.  Darby,  1  Show.  99. 

^  Schofield  V.  Ferrers,  46  Pa.  St.  439 ;  Nickerson  v.  Chatterton,  7  Cal.  570 ; 
Brown  r>.  Stanford,  22  Ark.  78;  McKeal  v.  Freeman,  25  Ind.  151;  McGiauia 
V.  Hart,  6  Clark,  (Iowa,)  210;  Conner  v.  Corastock,  17  Ind.  90. 

'  Matliugly  v.  Crowley,  42  111.  300. 


iVHERE   DEFENDANT   AVOIDS    TRIAL.  277 

§  500.  Return  of  the  young  of  animals  born  after  suit 
begun.  Where  the  property  in  dispute  is  living  animals,  the 
increase  of  such  animals,  born  after  delivery  to  the  plaintiff, 
may  be  ordered  to  be  returned ;i  but  wool  shorn  from  sheep,  or 
butter  made  from  the  milk  of  cows,  would  be  compensated  for 
in  damages,  not  ordered  to  be  returned. 2  But  the  children  of 
a  slave  might  be  recovered  with  the  mother;  the  ownership 
of  the  mother  carries  with  it  the  ownership  of  her  children. ^ 

§  501.  Where  defendant  avoids  trial  upon  the  merits. 
When  the  defendant  has  an  opportunity  to  contest  the  plain- 
tiff 's  claim  upon  the  merits,  and  avoids  doing  so  by  technical 
objections  which  are  sustained,  for  purely  technical  reasons, 
the  judgment  for  a  return  does  not  necessarily  follow.*  If 
the  writ  abate  for  the  mistake  of  the  clerk,  the  defcTidant  shall 
not  have  return. ^  When  the  defendant  pleads  in  abatement 
for  a  variance  between  the  writ  and  the  declaration,  and  is  suc- 
cessful, no  return  shall  be  awarded.  If  he  is  justly  entitled 
to  a  return,  he  should  plead  and  claim  it;  but  when  he  avoids 
the  issue  upon  the  merits,  and  no  fact  appearing  in  the  plead- 
ings or  the  record  showing  his  right  to  possession,  a  return 
will  not  be  ordered. ^  Bat  the  plea  may  show  that  the  defend- 
ant is  entitled  to  a  return;  if  so,  it  will  be  allowed.'^  So,  where 
the  action  is  defeated  only  because  it  is  prematurely  brought, 
there  is  authority  for  withholding  the  order  for  a  return, 
though  defendant  be  entitled  to  costs  and  damages. ^ 

§  502.  The  same.  Although  these  cases  by  no  means 
stand  alone,  they  cannot  be  said  to  represent  the  current  of 
authorities.     When  the  defendant  pleaded  in  abatement  for 

'  Buckley  v.  Buckley,  13  Nev.  423;  Jordan  v.  Thomas,  31  Miss.  558. 
2  Buckley  v.  Buckley,  13  Nev.  433. 
s  Seay  v.  Bacon,  4  Sneed.  (Tenn.)  103. 

*  McIIvain's  Admr.  v.  Holland,  5  Har.  (Del.)  228. 

s  Gilbert  on  Replevin,  175 ;  Gould  v.  Barnard,  3  Mass.  199,  2  Inst.  340. 
See  Parker  ®.  Mellor,  Garth.  398;  Allen  ?;.  Darby,  1  Show.  99;  Patter  t). 
North,  1  Wm.  Saund  347:  Cross  v.  Bilson,  6  Mod.  103. 

*  Hartgraves  v.  Duval,  1  Eng.  (Ark.)  508;  Dickinson  v.  Noland,  2  Eng. 
(Ark.)  36;  Hill  v.  Bloomer,  1  Piuney,  (Wis.)  463;  Simpson  v.  McFarland,  18 
Pick.  430;  Gould  v.  Barnard,  3  Mass.  199. 

'  People  ex  rel.,  etc.  v.  N.  Y.  Com.  Plea,  2  Wend.  644. 
«  Martin  v.  Bayley,  1  Allen,  (Mass.)  381. 


278  THE   RETDKN. 

want  of  a  bond  for  costs  (the  plaintiff  being  a  non-resident  of 
the  State),  and  the  plea  was  sustained,  a  return  of  the  property 
was  adjudged.^  So,  in  Maine,  when  the  writ  was  abated  be- 
cause of  a  defect  in  the  bond,  the  defendant  had  judgment  for 
a  return. 3  The  same  rule  was  announced  in  a  well-considered 
case  in  Vermont,  where  the  suit  was  brought  in  a  county  other 
than  that  in  which  the  goods  were  detained.  The  court  dis- 
missed the  case,  but  ordered  a  return  of  the  goods  to  the 
defendant.'  Where  the  plaintiff  is  defeated  because  of  defect 
in  his  suit  or  proceeding,  while  the  court  will  usually  order  a 
return  of  the  property,  the  judgment  is  not  conclusive  as  to 
title;  that  has  not  been  tried,  and  the  plaintiff  may,  if  he  elect, 
bring  another  suit  for  the  same  property,  to  determine  that 
question.'* 

§  503.  The  general  rule  stated.  It  is  more  probable,  how- 
ever, that  the  cases  cited  for  and  against  the  return  for  technical 
errors  upon  the  part  of  the  plaintiff,  do  not  present  the  real 
principle  which  lies  at  the  bottom  of  all  such  cases,  which  is, 
that  the  court  will,  in  all  cases  where  a  return  is  demanded, 
rather  favor  an  investigation  of  the  right  of  the  respective 
parties,  at  the  time,  and  award  or  withhold  the  judgment  for 
a  return,  as  from  such  investigation  seems  proper.  Such  a 
course  is  much  better  calculated  to  do  justice  between  the  lit- 
igants than  an  arbitrary  penalty  inflicted  upon  the  defendant 
for  asserting  and  standing  upon  a  legal  right,  or  a  substantial 
reward  to  a  plaintiff  who  has  at  least  been  guiltj'  of  a  technical 
error."* 

§  504.  The  same.  When  it  appeared  upon  the  trial  that  the 
plaintiff  in  replevin  had  but  a  limited  interest  in  the  goods, 
and  that  the  defendant  was  the  real  owner,  the  question  of 
return  depended  upon  the  nature  of  the  interest  shown  by 
each  party.     Replevin  of  goods  attached  by  defendant  as  dep- 

>  Fleet  V.  Lockwood,  17  Conn.  233. 

»  Greely  v.  Currier,  39  Me.  516;  McArtbur  v.  Lane,  15  Me.  245. 

8  Collamer  v.  Page,  35  Vt.  387. 

*  Collamer  v.  Page,  35  Vt.  393 ;  Thurber  v.  Richmond,  46  Vt.  398. 

«  Walbridge  v.  Shaw,  7  Gush.  5G1 ;  Whitwell  v.  Wells,  24  Pick.  33.  When 
the  right  of  property  and  possession  are  put  in  issue,  but  not  passed  upon, 
a  return  cannot  be  awarded.     Heerou  v.  Beckwith,  1  Wis.  18. 


WHERE    TROPERTY   IS   LOST    OR    DESTROYED.  279 

uty  sheriff,  etc.;  trial;  verdict  for  defendant,  who  moved  for  a 
return.  Plaintiff  offered  to  show  that  since  the  verdict  the 
attachment  had  been  dissolved,  and  that  defendant's  interest 
had  ceased.  On  appeal  Dewey,  J.,  said  the  attaching  ofdcer 
may  be  liable  to  the  debtor;  the  dissolution  of  the  attachment 
may  have  been  the  effect  of  proceedings  in  insolvency,  and  the 
officer  may  be  liable  to  the  assignee.  A  return  should  be 
awarded.  ^ 

§  505.  Liquors  sold  to  enable  vendee  to  violate  the  law, 
AVhere  parties  sold  liquors  to  enable  their  vendee  to  sell  them 
in  violation  of  the  law,  the  vendors  could  not  sustain  replevin; 
having  brought  their  suit  against  the  sheriff  who  had  attached 
them  as  the  property  of  the  vendee,  they  could  not  claim  tliat 
they  should,  on  dismissal  of  their  suit,  be  left  with  them. 
The  law  found  them  in  the  hands  of  the  sheriff,  and  whether 
they  were  properly  or  not  subject  to  sale  or  process  in  the 
sheriff's  hands,  they  were  to  be  returned  to  him. 

§  500.  When  the  parties  are  joint  tenants.  When  the  prop- 
erty belonged  to  the  plaintiff  and  defendant  as  co-tenants,  and 
the  jury  so  found,  the  action,  of  course,  could  not  be  sustained; 
in  such  case  the  defendant  was  entitled  to  judgment  for  a 
return;  otherwise,  the  plaintiff,  though  not  entitled  to  sue  his 
co-tenant  in  this  action,  would  derive  the  same  benefit  from 
his  suit  as  if  he  had  rightfully  brought  the  action ;3  but  dam- 
ages, in  case  the  property  be  not  returned,  can  only  be  for  the 
interest  which  the  defendant  has  in  it.* 

§  507.  Where  the  property  is  lost  or  destroyed.  When  it 
appears  that  the  property  is  hopelessly  lost  or  destroyed,  so 
that  a  judgment  for  its  return  can  be  of  no  avail,  a  failure  to 
render  judgment  for  the  return  will  be  at  most  a  technical 
error,  and  for  which  the  judgment  for  value  will  not  be 
reversed.*  When  property  taken  is  a  living  animal,  and  it 
dies  before  return,  it  is  a  good  plea  to  say  it  is  dead  without 

'  Dawson  v.  Wetherbee,  2  Allen,  461 ;  Kimball  v.  Thompson,  4  Cusli.  441 ; 
Johnson  «.  Neale,  6  Allen,  228. 

«  Mason  v.  Sumner,  22  Md.  312. 

»  Jones  V.  Lowell,  35  Me.  539 ;  Witham  v.  Witham,  57  Me.  448 ;  Bartlett 
e.  Kidder,  14  Gray.  450. 

*  Brown  v.  Johnson,  45  Cal.  77;  Boley  v.  Griswold,  20  Wall.  486. 


280  THE    EETDEN. 

fault  of  defendant ;i  and  in  such  cases  tlie  court  may  render 
judgment  for  the  vahie  without  ordering  a  return. 

§  508.  When  the  question  of  return  should  be  determined. 
The  right  to  a  return  should  be  determined  in  the  replevin 
suit.2  In  Missouri,  upon  a  judgment  of  non-suit  against  the 
plaintiff,  a  writ  of  inquiry  issues  to  ascertain  the  value  of  the 
property;  also,  whether  the  plaintiff  has  possession  or  not, 
and  to  assess  the  damages  for  the  taking  and  detention.  ^  The 
judgment  for  return  must  be  rendered  at  the  term  at  whicli 
the  case  is  determined.  If  the  fact  that  the  court  has  at  the 
time  of  disposing  of  the  suit  decided  to  award  a  return,  but 
does  not  do  so,  does  not  authorize  the  entry  of  such  judgment 
at  a  subsequent  term.'*  The  rules  before  stated,  while  they 
apply  generally  in  practice,  have  a  peculiar  application  in 
replevin  \vhere  the  action  is  in  the  nature  of  a  tort,  and  where 
promptness  and  exactness  are  especially  required. 

§  509.  Return  or  delivery  in  States  adopting  the  code.  By 
legislative  changes  in  many  of  the  States  this  action  has  be- 
come simply  one  of  "claim  and  delivery."  The  plaintiff 
claims  the  property,  but  frequently  does  not  ask  delivery  until 
after  trial.  The  judgment  at  the  conclusion  of  the  suit  awards 
property  to  the  party  entitled  to  its  possession;  if  it  be  to  the 
defendant  from  whom  the  property  has  been  taken,  the  judg- 
ment is  for  a  return;  if  to  the  plaintiff  who  has  not  had  de- 
livery before  the  judgment,  it  is  for  a  delivery.  The  judg- 
ments in  such  cases  are  controlled  by  very  similar  principles. 
The  court,  after  due  considerations  of  the  rights  of  the  parties, 
awards  the  property  to  the  one  entitled  to  it;  if  that  party  is 
not  in  possession,  the  court  awards  a  delivery  to  him,  and  also 
a  judgment  for  the  value  to  be  collected  in  case  the  order  for 
delivery  is  not  complied  with.  The  judgment  in  such  case  is 
not  absolute,  but  is  in  the  alternative  for  the  goods  or  for  the 

'  Carpenter  v.  Stevens,  13  Wend.  589,  though  this  is  disputed;  see  post,  § 
600,  et  seq. 

2  Harman  v.  Goodrich,  1  Greene,  (Iowa,)  25 ;  Mills  v.  Gleason,  21  Cal.  274. 
Unless  in  case  of  non-suit.    Ginaca  v.  Atwood,  8  Cal.  446. 

3  Hohenthal  v.  Watson,  28  Mo.  360. 
*  Lill  V.  Stookey,  72  111.  495. 


WRIT   OF   RETURN   MUST   DESCRIBE    THE    GOODS.  281 

value  in  case  delivery  cannot  be  liad,^  and  in  case  delivery  in 
compliance  with  such  judgment  is  not  made,  execution  issues 
against  the  party  to  collect  the  value. 

§  510.  The  writ  of  return  must  describe  the  goods.  It  was 
an  old  rule  that  the  sheriff,  upon  a  writ  of  retorno,  is  not 
obliged  to  deliver  the  goods  unless  they  were  "  shown  to  him," 
or  so  clearlj'  described  in  the  writ  that  there  can  be  no  ques- 
tion about  their  identity.^ 

'  This  rule  is  general,  though  in  some  States  the  party  may  elect  to  take 
judgment  for  the  value  alone. 

'  Rast.  Ent.  p.  570  6;  Taylor  v.  Wells,  2  Saund.  74  h.  It  is  a  good  return 
to  say  that  "none  came  to  show  the  beasts."  Bac.  Abr.  title  Rep.  H;  AVil- 
son  V.  Gray,  8  Watts,  (Pa.)  34.  It  is  also  held  that  if  tlie  goods  are  described 
in  the  writ  of  return  as  they  were  described  in  the  writ,  it  is  sutiicient,  and 
a  rule  that  the  sheriff  must  make  inquiry,  if  he  cannot  find  the  goods  with- 
out.  These  rules  are  not  intended  to  encourage  loosness  in  description, 
which  should  in  all  writs  be  full  and  accurate 


2S2 


DAMAQES. 


CHAPTER    XYII. 


DAMAGES. 


Section. 
By  common  law,  damages  al- 
lowed to  plaintiff,  not  to  de- 
fendant     511 

General  rule  now  is  tliat  dam- 
ages are  awarded  to  the  suc- 
cessful party    ....  512 
Allowed  only  as  an  incident  to 

the  proceedings  for  possession  513 
May  be  allowed  to  both  parties  514 
The  reasons  for  the  rule    .        .  515 
Plaintiff  cannot  dismiss  so  as 
to  avoid  a  hearing  upon  the 
question  of  damages  or  re- 
turn   516 

Where  the  suit  is  dismissed  for 

informality      .        .        .  517,  518 
The  rule  in  such  cases       .        .519 
The  rules  applicable  to  actions 
of  tort  generally  apply  to  re- 
plevin; distinctions  stated     .  520 
Damages  to  plaintiff .        .        .  531 
Damages  to  defendant       .        .  522 
The  same.     Not  allowed  unless 
a  return  of  the  property  is 
claimed    ....  523,  524 
The  rules  for  estimating  dam- 
ages   525 

Nominal  damages      .        .  526,  527 
Party  claiming  damages  must 
sliow  the  extent  of  his  inju- 
ries by  proof   .        .        .  528,  529 
Compensation  the  object  of  the 

award 530 

How  the  amount  of  compensa- 
tion is  aiccrtained  .        .        .  531 


Section 

When  the  goods  have  changed 
in  value  

The  rule  giving  compensation 
applies  only  to  cases  where 
no  malice  or  willful  wrong  is 
charged  

When  taking  was  wrongful, 
damages  estimated  from  the 
time  of  taking,  otherwise  from 
the  time  of  conversion  . 

Depreciation  in  value  a  proper 
element  of  damages 

Tiie  rule  not  uniform 

Interest  as  a  measure  of  dam- 
ages   

How  assessed      .... 

When  a  part  of  the  goods  only 
are  found         .... 

In  suit  on  bond  .... 

When  the  suit  is  concerning  the 
validity  of  a  sale    . 

Where  defendant  is  a  stake- 
holder       

Value  of  property  when  allowed 
as  damages      .        .        .  543,  544 

When  value  is  regarded  as  at- 
taching     545 

Value  at  the  time  of  conver- 
sion    546,  547 

This  rule  is  applicable  when 
the  value  of  the  propertj^  is 
stable;  rule  when  the  value 
varies 548 

The  highest  value  after  taking 
and  before  trial       .        549  to  553 


533 


533 


534 

535 
536 

537 
538 

539 
540 

541 

543 


BY    COMMON    LAW    ALLOWED    TO    PLAINTIFF. 


2S3 


Qualifications  of  the  rule;  suit 
must  be  brought  within  a 
reasonable  time       .        .  553.  554 

What  is  highest  market  value  .  555 

Further  qualifications  of  the 
rule 556 

Measure  of  damages  in  suit  for 
a  note  or  bill  .        ,        557  to  559 

Value  of  coin  sometimes  esti- 
mated in  currency  .        .        .  560 

Damages  occasioned  by  party's 
own  act  not  allowable    .        .  561 

The  place  where  the  value  is 
considered  as  attaching  .  562 

The  same.  General  rule  is  val- 
ue where  the  goods  were  de- 
tained; value  in  another  mar- 
ket may  be  evidence       563  to  565 

The  same.  Reason  for  the  rules 
stated   .        .  ...  566 


Trespasser  cannot  recover  for 
his  labor  in  increasing  the 
value 567 

Or  make  a  profit  out  of  his 
wrongful  taking     .        .        .  568 

Statement  of  value  in  the  affi- 
davit usually  binds  the  plain- 
tiff, but  not  the  defendant      .  569 

Appraismeut  does  not  bind 
either  party     ....  570 

Special  damages  must  be  spec- 
ially pleaded  ....  571 

Loss  by  interruption  of  busi- 
ness   572,  573 

Loss  of  real  or  probable  profits  574 

Party  claiming  damages  must 
do  what  he  can  to  avoid  loss    575 

Expenses ;  counsel  fees,  etc.  576,  577 

Expense  of  taking  and  remov- 
ing the  property      .        .        .  578 


§  511.  By  common  law,  damages  allowed  to  plaintiff,  not 
to  defendant.  By  the  common  law,  tlie  plaintiff  in  replevin, 
if  successful,  was  entitled  to  damages;  the  defendant  or  avow- 
ant was  not.i  This  was  because  the  action  would  lie  only  in 
cases  of  distress  for  rent,  w^here  the  lord  distraining  had  no 
right  to  use  the  cattle,^  and  was  not  damaged ^  by  the  replevin 
while  the  tenant  was  always  damaged  by  the  taking  and  con- 
sequent loss  of  the  use  of  his  beasts.  The  statutes  7  H.  VIII. 
c.  4,  and  21  H.  YIII.  c.  19,  gave  the  defendant  a  right  to 
damages,  the  same  as  the  plaintiff  was  entitled  to  before  the 
statute  was  enacted.  The  governing  principle  of  these  stat- 
utes has  obtained  the  force  of  law  generally  in  this  country  — 
in  some  States  by  direct  adoption  of  the  common  law  and  the 
statutes  in  aid  thereof,  and  in  others  the  courts  have  adopted 
the  substantial  principles  of  these  statutes  to  the  requirements 
of  more  modern  jurisprudence.  The  common  law  to  prevent 
vexatious  suits,  required  the  plaintiff  to  find  pledges  to  pros- 

'Winnard  v.  Foster,  Lutw.  374;  Hopewell  v.  Price,  2  Har.  &  G.  (Md.) 
275. 

»  Anon.  Dyer,  280. 

'  The  sheriff  it  seems  has  no  right  to  use  cattle  seized.  Briggs  v.  Gloa- 
son,  29  Vt.  80;  Lamb  v.  Day.  8  Vt.  407. 


284  DAMAGES. 

eciite;  and  lie  was  amerced  if  he  failed  to  sustain  his  claim. 
As  that  practice  fell  into  disuse,  costs  were  awarded  to  the 
successful  party,  these  not  being  sufficient  in  all  cases  to 
restrain  frivolous  or  vexatious  suits,  the  law  gave  the  success- 
ful party  damages.  ^ 

§  512.  General  rule  now  is  that  damages  are  awarded  to 
the  successful  party.  Under  modern  practice,  the  general 
rule  may  be  stated,  that  the  successful  party  in  replevin  is 
entitled  to  damages  against  his  opponent  in  all  cases  where 
damages  are  claimed  in  his  pleading.  The  amount  may  be 
nominal,  or  substantial,  as  circumstances  require.^  The  ques- 
tion of  damages  is  so  far  an  essential  one  in  replevin,  that  a 
failure  to  claim  them  in  the  declaration  is  a  fatal  defect. ^ 
The  successful  part}'  in  this  action  may  have  judgment  for  the 
property,  or  for  its  value,  in  case  it  is  not  delivered.  It  is 
very  evident  that  in  many  cases  the  restoration  of  the  goods 
or  the  ])ayment  of  the  value  falls  far  short  of  compensating 
for  the  injury  plaintiff  has  sustained.*  In  such  cases  dam- 
aijes  are  awarded  to  make  good  the  loss.^ 

§  513.  Allowed  only  as  an  incident  to  the  proceeding  for 
possession.    Eeplevin  is  not  the  proper  action  for  the  recovery 

>  Savile  v.  Roberts,  1  Ld.  Kaymond,  3'='0. 

'  In  Kendall  v.  Fitts,  2  Foster,.  (N.  H.)  9,  it  was  said,  that  in  replevin 
damages  should  always  be  assessed  for  the  plaintiff  or  defendant.  In  the 
subsequent  case  of  McKean  v.  Cutler,  48  N.  H.  372,  it  was  s^id,  that  a  find- 
ing of  damages  was  not  essential  to  the  validity  of  a  judgment  in  replevin. 
See,  also,  as  to  the  general  rule.  Brown  v.  Smith,  1  N.  H.  38;  Etter  v.  Ed- 
wards, 4  Watts,  (Pa.)  68;  Booth  v.  Ableman,  20  Wis.  24;  Graves  v.  Sittig,  5 
Wis.  219;  Creighton  v.  Newton,  5  Neb.  100;  School  Dist.  v.  Shoemaker,  5 
Neb.  36;  Wright  v.  Williams,  2  Wend.  636;  Buckley  v.  Buckley,  12  Nev. 
423;  Frey  v.  Drahos.  7  Neb.  195;  Seymour  v.  Billings,  12  Wend.  286;  Clark 
V.  Keith,  9  Ohio,  73;  Hohenthal  v.  Watson,  28  Mo.  360;  Williams  v.  Phelps, 
16  Wis.  87.  The  jury  should  determine  whether  the  plaintiff"  liad  the  right 
of  property,  or  the  right  of  possession  only,  at  the  commencement  of  the 
suit,  and  if  tiiey  find  either  in  his  favor,  they  should  assess  sucii  damages 
as  are  proper.  Williams  v.  West,  2  Ohio  St.  88.  Replevin  sounds  in  dam- 
ages like  trespass.     Herdic  v.  Young,  55  Pa.  St.  1,  76. 

»  Paget  V.  Brayton,  2  Har.  &  J.  (Md.)  350;  Crosse  v.  Bilson,  6  Mod.  102 

*  See  cases  last  cited. 

^  Stevens  v.  Tuitc,  104  Mass.  333 ;  Hemstead  v.  Colburii,  5  Cranch.  C.  C. 
655. 


MAY    BE    ALLOWED   TO    BOTH    PARTIES.  285 

of  damages,  except  as  an  incident  to  the  proceeding  for  pos- 
session.' So  wlien,  after  a  demand  and  refnsal,  but  before 
suit  brought,  the  defendant  offered  to  restore  the  property,  the 
plaintiff  on  trial  insisted  that  his  right  to  damages  was  com- 
plete upon  the  refusal  of  the  defendant  to  deliver;  that  a 
subsequent  voluntary  surrender  would  not  defeat  the  action; 
the  court  held  that  surrender  of  the  property  was  a  bar  to 
damages,^  though  perhaps  the  party  might  have  been  entitled 
to  such  damages  as  accrued  after  the  refusal  and  before  the 
surrender.  When  a  distress  was  made  of  horses  and  cattle, 
and  one  horse  and  cow  not  levied  upon  followed  the  others  to 
the  place  where  they  were  impounded,  although  an  effort  was 
made  to  drive  them  back,  and  the  next  day  the  tenant  was  no- 
tified that  he  could  get  them  by  going  for  them,  replevin 
would  not  lie;  the  defendant  never  had  or  claimed  the  posses- 
sion. The  only  action  which  could  be  sustained  would  be  an 
action  for  damages  independent  of  the  possession,  and  for  that 
replevin  is  not  adapted. ^ 

§  514.  May  be  allowed  to  both  parties.  The  verdict  and 
judgment  may  sometimes  be  against  both  parties.  That  is, 
the  plaintiff  may  have  judgment  for  a  portion  of  the  property, 
while  the  remainder  may  be  ordered  to  be  returned  to  the  de- 
fendant. In  such  cases  each  party  is  entitled  to  judgment 
against  his  opponent,  for  damages  and  costs,  so  far  as  he  is 
successful.*  The  general  power  of  the  court  extends  without 
doubt  to  set  off  the  damages  and  costs  one  against  the  other, 
and  to  give  judgment  for  the  balance. ^ 

'  Johnson  v.  Weeclman,  4  Scam.  495. 

s  Savage  v.  Perkins,  11  How.  Pr.  R.  17. 

3  Lindley  v.  Miller,  67  111.  245.  See,  also,  Williams  v.  Archer,  5  M.  G.  & 
S.  318;  Jansen  v.  Effey,  10  Iowa,  237;  Whitfield  v.  Whitfield,  40  Miss.  367; 
Frazier  v.  Fredericks,  24  N.  J.  L.  163 ;  Broadwater  v.  Darne,  10  Mo.  27S. 

■*  Brown  v.  Smith,  1  N.  H.  36;  Williams  v.  Beede,  15  N.  H.  483;  Powell  v. 
Hinsdale,  5  IMass.  343;  Wright,  v.  Mathews,  2  Blackf.  (Ind.)  187;  Clark  v. 
Keith,  9  Ohio,  73;  Seymour  v.  Billings,  12  Wend.  286. 

5  McLarren  ^.Thompson,  40  Me.  285;  Poor  v.  Woodburn,  25  Vt.  239. 
There  were  six  issues;  the  jury  found  three  for  each  party;  the  court 
allowed  each  party  all  the  costs  upon  the  pleadings  where  he  had  suc- 
ceeded, and  judgment  was  accordingly.  VoUum  v.  Simpson,  2  Bos.  & 
Pull.  363.    In  this  replevin  differs  from  other  actions.    Batcher  v.  Green, 


286  DAMAGES. 

§  515.  The  reasons  for  the  rule.  It  must  be  kept  in  mind 
that  in  this  action  the  plaintiff's  suit  is  not  only  for  his  goods 
but  for  the  damages  he  has  sustained  by  reason  of  their  wrong- 
ful takino;  or  detention,  which  furnished  the  foundation  of  his 
action;  and,  if  he  succeeds  in  establishing  his  claim,  he  is  en- 
titled not  only  to  his  property,  or  its  value,  but  to  such 
damages  as  will  be  just.^  The  claim  for  damages  is  as  much 
a  part  of  the  case  as  the  contest  for  the  possession  of  the 
goods,3  but  if  the  plaintiff,  for  any  cause,  fails  or  dismisses  his 
suit,  or  submits  to  a  non-suit,  the  defendant  is  entitled  to  a 
judgment  for  a  return  of  the  property,  or  for  its  value,  and 
to  such  damages  as  shall  compensate  him  for  the  injury  he  has 
sustained. 3  The  defendant  is  suing  for  a  return  of  the  goods 
and  for  damages,*  and  if  successful  is  entitled  to  judgment, 
and  upon  a  proper  showing  to  the  same  damages  the  plaintiff 
would  have  had  had  he  been  successful.  ^ 

§  5 16.  Plaintiflf  cannot  dismiss  so  as  to  avoid  a  hearing  upon 
the  question  of  damages  or  return.  The  plaintiff  cannot  dis- 
miss his  suit  so  as  to  avoid  a  hearing  as  to  the  value  of  the 
property  and  assessment  of  damages.  In  case  of  a  dismissal 
for  that  purpose,  the  court  will  retain  the  case  and  hear  and 
determine  the  questions  as  to  damages  and  a  return;^  and  if 
the  plaintiff  should  dismiss  his  suit,  it  would  not  affect  the 
defendant's  right  to  an  action  on  the  bond.' 

§  517.  Where  the  suit  is  dismissed  for  informality.  It  hap- 
pens not  unfrequently  that  the  plaintiff  is  compelled  to  dismiss 
his  suit  for  some  informality  in  the  proceeding,  where  no  trial 

Doug.  (Eng.)  632;  Wright  c.  Williams,  2  Wend.  633;  Porter  v.  Willet,  14 
Abb.  Pra.  Rep.  319. 

'  Messer  v.  Baily,  11  Foster,  (N.  H)  9;  Bell  v.  Bartlett,  7  N.  H.  178;  Dor- 
sey  V.  Gassaway,  2  Har.  &  J.  (Md.).403;  Graves  v.  Sittig,  5  Wis.  223;  Parham 
V.  Riley,  4  Cold.  (Teiin.)  10;  Gray  v.  Nations,  1  Ark.  569. 

2  Buckley  v.  Buokley,  12  Ncv.  430. 

3  Fallon  V.  ISIanning,  35  Mo.  274;  Collins  v.  Hough,  26  Mo.  149. 

*  Gould  V.  Scannel,  13  Cal.  430;  Bouner  v.  Coleman,  3  B.  Mon.  (Ky.)  464; 
Smith  V.  Snyder,  15  Wend.  324. 

s  Berghofi'  v.  Heckwolf,  26  Mo.  512;  Smith  v.  Winston,  10  Mo.  299. 

«  Mikesill  v.  Chancy,  6  Port.  (Ind.)  53;  Ranney  v.  Thomas,  45  Mo.  112; 
Berghoff  v.  Heckwolf,  26  Mo.  513. 

'  Hall  V.  Smith,  10  Iowa,  45. 


WHERE    SUIT   IS   DISiUSSED    FOR    INFORMALITY.  2S7 

upon  the  merits  can  be  had,  but  when  the  court  is  justified  in 
ordering  a  return  of  tlie  property.  In  such  case,  the  question 
of  assessing  damages,  in  addition  to  the  return  of  the  property, 
is  one  of  some  difficulty.  If,  for  example,  the  suit  is  dismissed 
for  some  informality  in  the  affidavit,  writ  or  bond,  the  judg- 
ment may  be  for  a  return;  the  defendant  may  also  ask  for  an 
assessment  of  his  damages  for  the  wrongful  taking.  In  such 
case  no  evidence  of  the  plaintiff's  title  is  permitted,  when,  in 
case  an  opportunity  had  been  offered,  he  might  have  been 
abundantly  able  to  show  himself  to  be  the  owner  of  the  goods, 
and  entitled  to  their  possession.  The  judgment  for  return  in 
such  case  does  not  affect  the  question  of  title  to  the  property, 
but  the  judgment  for  damages,  if  rendered,  would  be  conclu- 
sive to  that  extent,  and  the  plaintiff  compelled  to  pay  them 
without  redress,  although,  according  to  the  equities  of  the 
case,  the  property  was  liis  own,  and  wrongfully  taken  from 
him.  Cases  are  not  wanting  which  hold  that  where  the  de- 
fendant sets  up  some  purely  technical  defense  to  defeat  the 
plaintiff,  and  thus  avoids  a  hearing  upon  the  merits,  no  return 
will  beawarded;!  but  the  current  of  authority  is  doubtless  the 
other  way,  2 

§  518.  The  same.  In  a  well  considered  case  in  Vermont, 
the  2:oods  were  ordered  to  be  returned  for  informalitv  in  briTiop- 
ing  the  suit,  without  any  investigation  into  the  title,  defend- 
ant insisting  upon  an  assessment  of  damages.  The  court 
denied  his  application,  saying,  that  the  disputed  questions 
of  title  were  not  determined,  and  that  damages,  (beyond  nomi- 
nal,) should  not  follow  the  plaintiff's  failure  to  sustain  his  suit 
for  mere  irregularity. ^     In  Maine,  after  a  judgment  that  the 

'Dickinson  v.  Noland,  2  Eng.  (Ark.)  26;  Hartgraves  v.  Duval,!  Eng. 
(Ark.)  50  i;  Hill  v.  Bloomer,  1  Pianey,  (Wis.)  463;  Gould  v.  Barnard,  3 
Mass.  199. 

2  Crosses?.  Bilson,  6  Mod.  102;  Salkold  v.  Skelton,  Cro.  Jac.  519;  Pres- 
grave  v.  Saunders,  2  Ld.  Raym.  984;  Barry?;.  O'Brien,  103  Mass.  521 ;  Daw- 
son V.  Wetlierbee,  2  Allen,  (Mass.)  4G2;  Ranney  «.  Thomas,  45  Mo.  112; 
Wilkins  tJ.Treynor,  14  Iowa,  393;  Mason  v.  Richards,  12  Iowa,  74;  .Tansen  v. 
EfTey,  10  Iowa,  227;  Fleets.  Lockwood,  17  Conn.  233;  Gilbert  on  Replevin, 
p.  169. 

2  CoUomer  v.  Page,  35  Vt.  396.  See,  also,  Thurber  v.  Richmond,  46  Vt. 
399. 


2SS  DAMAGES. 

writ  abate,  an  order  for  a  return  was  made;  but  the  court 
refused  to  assess  damages,  upon  the  ground  that  there  was  no 
issue  upon  which  thej  could  be  estimated. ^ 

§519.  The  rule  in  such  cases.  The  true  rule  seems  to  be, 
that  judgment  for  a  return  is  only  rendered  when  the  court 
perceives  such  a  course  to  be  just;  it  will  always  hear  evidence 
when  a  proper  case  is  presented,  as  to  whether  the  order  for 
return  should  be  made  or  not.  At  the  same  time  it  will  con- 
sider all  such  facts  as  affect  the  question  of  damages;  and  if, 
from  all  the  facts,  it  appears  that  the  defendant  has  avoided  a 
trial  upon  the  merits,  and  that  the  plaintiff  fails  from  a  simple 
irregularity,  when  he  otherwise  would  be  likely  to  succeed, 
damages  beyond  nominal  will  very  rarely,  if  ever,  be  awarded. 2 

§  520.  The  rule  applicable  to  actions  of  tort  generally 
apply  to  replevin;  distinctions  stated.  The  rules  for  assessing 
damages  in  other  cases,  in  tlie  nature  of  tort,  will  generally 
be  applicable  to  replevin.  This  distinction,  however,  exists, 
that  in  replevin  the  plaintiff  asserts  a  continuing  ownership 
in  himself;  he  seeks  a  return  of  his  goods,  and  damages  for 
the  interruption  to  Jiis  possession.  In  trover  the  plaintiff 
asserts  that  the  defendant  has  converted  the  property  to  his 
own  use;  he  therefore  recognizes  the  transfer  of  the  title  to 
the  defendant,  and  seeks  simply  a  compensation  for  its  value, 
not  its  return.  It  follows,  that  in  trover  the  party  can  never 
recover  for  the  use  of  the  property,  while  it  is  equally  clear 
that  in  replevin  the  successful  party  may,  in  many  cases,  be 
entitled  to  recover  the  value  of  tlie  use  of  the  property  of 
which  lie  has  been  wrongfully  deprived. ^  Again,  in  trover, 
the  right  of  property,  general  or  special,  is  always  in  question, 
while  in  replevin  the  right  of  possession  may  alone  be  in  issue. 
This  does  not  change  the  fact,  however,  that  in  their  sub- 
stantial features  great  similarity  exists  between  all  actions 
brought  for  the  conversion  of  ^chattels.* 

'  McArthur  v.  Lane,  15  Maine,  245. 

«  Pierce  v.  Van  Dyke,  6  Hill,  (N.  Y.)613.    See  ante,  Ch.  — . 
»  McGavock  v.  Cliamberlain,  20  111.  220 ;  Allen  v.  Fox,  51  N.  Y.  564 ;  Wil- 
liams V.  Phelps,  16  Wis.  87;  Scott  v.  Elliott,  63  N.  C.  216. 
«  See  ante,  §  44,  et  seq. 


TO    PLAINTIFF    AND   DEFENDANT.  2S9 

§521.  Damages  to  plaintiff.  If  the  plaintiff  prevails,  the 
judgment  is  that  the  property  belongs  to  him,  that  he  right- 
fully took  it  by  his  writ,  and  that  he  is  entitled  to  damages 
and  costs,  as  well  as  judgment  for  the  property.'  Where  the 
property  was  delivered  to  him  upon  the  writ,  his  damages  only 
include  such  sura  as  will  compensate  him  for  the  injury  he  has 
sustained  by  reason  of  the  wrongful  taking  or  subsequent  de- 
tention, together  with  any  depreciation  in  value  it  may  have 
suffered^  up  to  the  time  when  he  obtained  it  by  virtue  of  his 
writ,  and  not  the  value  of  the  property.  If  the  property  was 
not  delivered  upon  the  writ,  then  its  value,  in  addition  to 
the  damages  for  detention,  may  form  a  proper  element  of 
compensation. 3 

§  522.  Damages  to  defendant.  Where  the  defendant  makes 
claim  to  the  property,  and  is  successful,  he  is  entitled  to  have 
it  restored  to  him,  or  its  value,  with  damages  for  the  loss  he 
has  sustained  by  the  interruption  to  his  possession,  estimated 
by  substantially  the  same  rules  employed  in  estimating  the 
plaintiff's  damages.  Damages  to  the  defendant,  however,  are 
but  an  incident  to  the  judgment  for  a  return.  If  a  return  is 
adjudged,  and  the  property  has  diminished  in  value  while  in 
plaintiff 's  possession,  this  decrease  must  be  allowed  to  the  de- 
fendant; otherwise,  the  plaintiff  might  return  it  in  a  depre- 
ciated condition.  If  it  has  increased  in  value,  the  increase 
must  be  allowed  him,  as  the  property  is  his,  and  he  is  entitled 
to  the  increase  of  his  own  property.* 

§  523.  The  same.  Not  allowed  unless  a  return  of  the  prop- 
erty is  claimed.  The  order  for  a  return  is  in  the  nature  of  a 
cross  judgment.     There  must  be  some  averment  in  the  plead- 

'  Moore  v.  Shenk,  3  Barr.  (Pa.)  13;  Stevens  o.  Tuite,  104  Mass.  333;  Nich- 
olas Ins.  Co.  B.  Alexander,  10  Humph.  (Tenn.)  383;  Fisher  «.  Whoollery,  25 
Pa.  St.  198. 

2  Young  V.  Willett,  8  Bosw.  (N.  Y )  486. 

3  Ewing  V.  Blount,  20  Ala.  694;  Russell  v.  Smith,  14  Kan.  374;  Fisher  v. 
Whoollery,  25  Pa.  St.  197;  Barkesdale  v.  Appleberry,  33  Mo.  389;  Hohen- 
thal  V.  Watson,  28  Mo.  360;  Suydam  v.  Jenkins,  3  Sandf.  615;  Williams  v. 
Archer,  5  M.  G.  &  S.  (57  E.  C.  L.)  324. 

*  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  125 ;  Hooker  v.  Hammill,  7  Neb.  231 ; 
Allen©.  Judson.  71  N.  Y.  76;  Pearce  v.  Twichell,  41  Miss.  345;  Neis  v. 
Gillen,  27  Ark.  187;  Pierce  v.  Van  Dyke,  6  Hill,  (N.  Y.)  613. 
19. 


290  DAMAGES. 

ings  to  sustain  It*  It  follows  that  where  the  defendant  by 
his  pleading  disclaims  a  judgment  for  a  return,  as  he  does  by 
the  plea  of  non  cepit  or  non  detinet,  etc.,  without  other  pleas, 
he  cannot  have  damages.  ^ 

§  524.  The  same.  Exceptions.  It  is  provided  by  statute 
in  some  States  that  the  plea  of  non  cepit  or  non  detinet  shall 
put  in  issue  the  plaintiffs  title  as  well  as  the  wrongful  taking 
or  detesntion.  In  such  cases  the  defendant  may  have  a  return 
upon  the  plea  of  non  cepit  or  non  detinet,  and  if  he  have  judg- 
ment for  a  return  he  may  also  have  judgment  for  damages. 
The  pleader  in  such  case,  upon  following  the  forms  laid  down 
in  the  local  statute,  must  be  regarded  as  asserting  all  the  rights 
which  are  allowed  to  that  form  of  plea.^ 

§  525.  The  rules  for  estimating  damages.  The  rules  for 
estimating  damages  in  this  action  are  by  no  means  as  simple 
as  they  at  first  appear.  Any  general  rule,  however  well  it  may 
be.  adaj.»ted  to  a  particular  case,  cannot  fail  to  work  hardship 
i;;  others.  It  is  more  important,  says  the  court  in  TJamer  v. 
JIatkaioay,  33  Cal.  117,  that  the  rule  should  be  certain,  than 
that  it  should  be  entirely  beyond  question  on  principle.  "With 
this  general  doctrine  of  stability  all  must  concur.  It  must  be 
added,  however,  that  correct  principles  can  alone  become  cer- 
tain. In  this,  as  in  other  actions  at  law,  the  case  is  tried  and 
determined  upon  the  rights  of  the  parties  as  they  existed  at 
the  time  the  suit  was  begun,  but  damages  may  be,  and  most 
usually  are,  assessed  up  to  the  time  of  the  rendition  of  judg- 

>  Gould  V.  Scannell,  13  Cal.  430;  Bonner  v.  Coleman,  3  B.  Mon.  (Ky.)  464; 
Smith  B.  Snyder,  15  Wend.  334. 

'  The  defendant  is  entitled  to  damages  only  when  he  shows  by  his  plead- 
ings  that  he  is  entitled  to  a  judgment  for  the  goods.  When  by  his  plead- 
ing he  admits  the  plaintifl  's  right  to  the  goods,  it  would  be  absurd  to  award 
him  damages,  even  though  he  have  a  verdict  and  judgment  for  costs.  Hop- 
kins u.  Burney,  2  Fla.  44;  Gould  v.  Scannell,  13  Cal.  430.  See  People?). 
Niagara  C.  P.,  4  Wend.  217;  Bates  v.  Buchanan,  3  Bush.  (Ky.)  117;  Bemus 
V.  Beckman,  3  Wend.  6G8;  Wiiitwell  v.  Wells,  24  Pick.  25;  Douglass  ».  Gar. 
rett,  5  Wis.  85.  "If  the  defendant  never  had  possession  he  cannot  have 
return,  nor  is  he  entitled  to  damage  for  the  detention  of  goods  he  never 
had."     Richardson  r>.  Reed,  4  Gray,  (Mass.)  443. 

»  Pickens  ».  Oliver,  29  Ala.  528. 


PARTY    CLAIMING   MUST    SHOW   EXTENT   OF   INJURIES.        291 

ment,  the  same  as  interest  upon  a  note.  Damages  to  the 
defendant  must  be  so  assessed. ^ 

§  526.  Nominal  damages.  The  rule  for  estimating  dam- 
ages to  the  snccess.ful  party  in  replevin  is  similar  in  principle 
to  that  in  other  cases  when  there  has  been  an  invasion  of  a 
right.  Nominal  damages  at  least  are  awarded  without  proof 
of  actual  injury.  The  general  rule  is,  that  when  one  does  an 
act  injurious  to  another's  right,  which  may  be  evidence  for  the 
wrong-doer  in  the  future,  damages  may  be  awarded,  even  if 
the  evidence  predominates  that  there  has  been  no  substantial 
injury.  3 

§  527.  The  same.  Tliis  rule  is  based  upon  the  assumption 
that  any  interference  with  the  party's  possession,  or  right  of 
possession,  is  an  injury,  even  if  unaccompanied  by  actual  loss. 
Its  observance  is  frequently  of  the  utmost  importance  in  set- 
tling questions  of  title.^ 

§  528.  Party  claiming  damages  must  show  the  extent  of  his 
injuries  by  proof.  It  is  for  the  injured  party  to  show  by  proof 
the  nature  and  extent  of  the  injury  he  has  suffered.  He  can 
in  no  case  recover  more  than  nominal  damages  without  proof 
of  the  extent  of  his  loss."*  Simple  proof  that  the  defendant 
took  the  goods  will  not  entitle  the  plaintiff  to  more  than  nom- 
inal damages.^    The  same  rule  applies  in  trespass.    A  trespass 

'  Washington  Ice  Co.  v.  Webster,  G2  Me.  341. 

2  Mellor  V.  Spateman,  1  Sauud.  n.  346  b ;  Strong  v.  Keene,  13  Irish  L.  R.  93 ; 
Smith  V.  Houston,  25  Ark.  184;  Cory  v.  Silcox,  6  lad.  39.  Nominal  dam- 
ages  have  been  called  "  a  peg  to  hang  costs  on ;  "  "A  sum  of  money  which 
has  no  quantity."  Maule,  J.,  in  Beammont  v.  Greathead,  (3  M.  G.  &  S.) 
52  E.  C.  L.  498. 

3  Munroe  v.  Stickney,  48  Me.  462;  Devendorf  v.  Wert,  42  Barb.  227;  Sto- 
well  V.  Lincoln,  11  Gray,  434;  McConnell  v.  Kibbe,  33  111.  175.  Awarded 
•when  defendant  had  no  title  to  property.  Champion  v.  Vincent,  20  Texas, 
811;  Smith  v.  Whiting,  100  Mass.  122;  Allaire  v.  Whitney,  1  Hill,  484; 
Sedgwick  on  Meas.  of  Damages,  6  Ed.  p.  55,  says:  "The  rule  as  to  nom- 
inal damages  should  be  limited  to  cases  where  a  right  is  necessarily  liii. 
gated.''''  A  rule  of  much  importance,  and  which  should  be  more  generally 
enforced.  There  seems  to  be  a  strong  tendency  in  the  English  courts  to 
discourage  suits  for  nominal  damages  when  no  others  appear.  Williams 
V.  Mostyn,  4  Mees  &  W.  145 ;  Young  v.  Spencer,  10  B.  &  C.  (21  E.  C.  L.)  145. 

*  Mann  v.  Grove,  4  Heisk,  (Tenn.)  403. 
«  Phenix  v.  Clark,  2  Mich.  327. 


292  DAMAGES. 

will  not  nsnally  warrant  substantial  damages,  unless  some  cir- 
cumstances of  aggravation  or  actual  injury  be  shown. ^  The 
jury  are  never  authorized  to  assess  damages  without  proof  of 
their  extent, ^  unless  it  be  in  exceptional  cases  when  facts  are 
submitted  to  their  consideration  to  estimate  under  the  order 
of  the  court.  3 

g  529.  The  same.  The  same  rule  applies  when  a  return  is 
adjudged  to  defendant.  In  the  absence  of  proof  of  actual 
damages  a  judgment  will  simply  be  entered  for  a  nominal 
amount.'*  When  the  jury  award  damages  for  detention  with- 
out finding  the  fact  of  detention,  such  award  is  erroneous.' 
"When  the  jury  omit  to  find  any  damages,  judgment  therefor 
cannot  be  rendered. ^ 

§  530.  Compensation  the  object  of  the  award.  The  rule  for 
ascertaining  damages  in  replevin,  when  no  fraud  or  malice  is 
involved,  is  usually  based  upon  the  idea  of  compensation;  the 
object  being  to  restore  the  party,  as  far  as  pecuniary  compen- 
sation will  do  so,  to  the  condition  he  was  in  before  the  act 
complained  of  was  committed."' 

'  Eose  ©.  Gallup,  33  Conn.  338. 

»  Phenix  v.  Clark,  2  Gibbs,  (Mich.)  327. 

3  Plaintiff  proved  damages,  but  not  the  amount;  a  judgment  for  the  de- 
fendant was  held  error.  Under  such  proof  plaintiff  was  entitled  to  nominal 
damages,  at  least.    Brown  v.  Emerson,  18  Mo.  103. 

*  Seabury  v.  Boss,  69  111.  533. 

*  Swain  v.  Roys,  4  Wis.  150. 

*  Black  V.  Winterstein,  6  Neb.  225. 

'  Berthold  v.  Fox,  13  Minn.  504;  Bonesteel  v.  Orvis,  22  Wis.  522;  Stevens 
V.  McClure,  56  Ind.  384;  Allen  v.  Fox,  51  N.  Y.  564;  Williams  v.  Crum,  27 
Ala.  468;  Dorsey  v.  Manlove,  14  Cal.  553.  Dicta  in  Hotchkiss  v.  Jones,  4 
Porter,  (Ind.)  260,  where  court  affirmed  judgment  in  a  ficticious  case  with- 
out looking  at  record.  DeWitt  v.  Morris,  13  Wend.  497 ;  Brizsee  v.  Maybee, 
21  Wend.  144;  Dows  v.  Rush,  28  Barb.  157;  Dennis  v.  Barber,  6  S.  &  R.  (Pa.) 
420;  AllisoniJ.  Chandler,  11  Mich.  542;  Baker  ».  Drake,  53  N.  Y.  211 ;  Barnes 
V.  Bartlett,  15  Pick.  75:  Gillies  v.  Wofford,  26  Tex.  66;  Wood  v.  Braynard. 
9  Pick.  322;  Woodburn  ».  Cogdal,  39  Mo.  222.  Such  damages  are  equiv- 
alent  for  the  injury.  Dorsey  v.  Gassaway,  2  Har.  &  J.  (Md.)  402.  Enough 
to  compensate  party.  M'Cabc  v.  Morehead,  1  Watts  &  S.  (Pa.)  513.  Exem- 
plary damages  may  be  given.  Taylor  v.  Morgan,  3  Watts,  334.  Damages 
which  cannot  be  accurately  measured  should  not  for  that  reason  be  denied, 
but  the  amount  should  be  left  to  the  finding  of  the  jury.  Gilbert  v.  Ken- 
nedy,  23  Mich.  117.    la  the  absence  of  the  elements  of  fraud,  malice,  or 


RULE   GOVERNING    COMPENSATION.  293 

§  531.     How  the  amount  of  compensation  is  ascertained. 

A  question,  however,  at  once  arises,  how  is  the  amount  of  that 
compensation  to  be  ascertained?  What  elements  enter  into 
it?  Where  the  value  of  the  property  is  to  be  included,  how 
shall  it  be  found?  And  if  the  value  is  fluctuating,  what  time, 
between  the  taking  and  the  final  judgment,  shall  be  selected 
as  the  time  when  the  value  shall  be  regarded  as  attaching? 
When  the  goods  have  a  fixed  and  unvarying  value,  compara- 
tively little  difficulty  arises  from  this  source;  but  when  the 
price  is  constantly  changing,  the  time  which  shall  be  seized 
upon  as  the  time  for  fixing  the  value  presents  another  question. 

§  532.  When  the  goods  have  changed  in  value.  It  may  ap- 
pear that  the  goods  may  have  been  removed  to  a  distance  from 
the  place  of  taking,  and  such  removal  may  have  enhanced  or 
may  have  diminished  their  value.  The  transfer  may  have 
been  with  a  design  to  deprive  the  owner  of  his  property,  or  it 
may  have  been  in  ignorance  of  his  rights.  A  radical  change 
may  have  taken  place  in  the  condition  of  the  property  while  in 
the  defendant's  possession,  before  or  pending  the  suit,  or  while 
in  plaintiff 's  possession,  upon  his  writ.  For  example,  a  colt 
may  have  become  a  horse,  or  it  may  have  died.  Grass  may 
liave  been  cut  and  stacked,  and  the  rain  may  have  spoiled  it;  or 
any  other  of  the  changes  incident  to  property  may  have  taken 
place.  These  circumstances  necessarily  enter  into  the  estimate 
of  compensation,  and  must  be  carefully  considered  in  all  their 
bearings  upon  the  rights  of  the  parties. 

§  533.  The  rule  governing  compensation  applies  only  to 
cases  where  no  malice  or  willful  wrong  is  charged.  As  before 
stated,  the  rule  which  usually  governs  the  assessment  of  dam- 
ages in  replevin  is  based  on  the  principle  of  compensation. 
The  plaintiff,  in  his  declaration,  claims  not  only  the  goods,  but 
damages  for  the  taking  or  detention.  Upon  proof  of  sucli 
facts,  he  is  entitled   to  such  damages  as  will  repair  his  loss. 

oppression,  damages  must  be  confined  strictl}"-  to  compensation  for  the 
injury.  Citj'-  of  Chicago  o.  Martin,  49  111.  241.  Consult  Bell  v.  Cunning- 
ham, 3  Peters,  69;  Tracy  ».  Swartwout,  10  Peters,  81.  The  common  law 
rule  was  inflexible.  Compensatory  damages  alone  were  given.  Fidier  v. 
McKinley,  21  III.  325;  2  Bla.  Com.  438;  Sedgwick  on  Meas.  of  Dam.  26; 
Parsons  on  Contracts,  5  Ed.  164,  et  seq. 


294  DAMAGES. 

This  rule  is  applicable  in  all  cases  of  replevin,  wliere  no  malice 
or  willful  wrong  is  charged.^ 

§  534.  When  taking  was  wrongful,  damages  estimated  from 
the  time  of  taking ;  otherwise,  from  the  time  of  conversion. 
Where  the  taking  was  wrongful,  the  damages  may  be  estimated 
from  the  time  of  the  taking;  but  where  it  was  rightful  in  the 
lirst  instance,  the  damages  can  only  be  estimated  from  the  time 
of  the  wrongful  conversion.  The  reasons  for  this  rule  are 
apparent.  A  rightful  possession  by  the  defendant  can  be  no 
injury  to  the  plaintiff;  but  a  wrongful  taking  is  presumed  to 
be  an  injury,  even  when  no  actual  damage  is  the  result.  If 
the  taking  was  rightful,  originally,  and  the  defendant  refuse  to 
deliver,  on  request,  his  detention  from  that  moment  is  wrong- 
ful, and  damages  should  be  assessed  i'rom  that  time. 

§  535.  Depreciation  in  value  a  proper  element  of  damages. 
Where  the  property  diminishes  in  value  wliile  it  is  wrongfully 
detained,  the  depreciation  is  usually  a  proper  element  of  dam- 
ages.2  This  rule  applies  alike  to  both  parties.  The  wrongful 
detainer  of  property  is  liable  for  its  depreciation  while  in  his 
hands.3  The  party  cannot  recover  for  the  use,  and  at  the  same 
time  have  depreciation  in  value  assessed,*  But  in  IS'ebraska, 
the  diminution  in  value,  with  the  interest  on  the  entire  value, 
was  given. 5 

§  536.  The  rule  not  uniform.  No  uniform  rule  can  be  given 
for  ascertaining  the  extent  of  compensation.     Different  meas- 

>  Bonesteel  v.  Orvis,  23  "Wis.  522;  Brannin  v.  Johnson,  19  Me.  362;  Bruce 
V.  Learned,  4  Mass.  614;  Wliitwell  v.  Wells,  24  Pick.  33;  Allison  v.  Chand- 
ler. 11  Mich.  542;  Baker  v.  Drake,  53  N  Y.  212;  Warner  v.  Matthews,  18 
111.87.  Trespass  for  taking  teas;  plaintiff  entitled  to  value  and  interest, 
after  the  usual  time  of  credit  on  such  sales.  Conard  v.  Pacific  Ins.  Co.,  6 
Pet.  (U.  S.)  262:  Pacific  Ins.  Co.  v.  Conard,  1  Baldwin  C.  C.  138.  See  Cham- 
pion V.  Vincent.  20  Tex.  811;  Bateman  v,  Goodyear,  12  Conn.  575;  Ives  v. 
Humphreys,  1  E.  D.  Smith,  196; 

2  Hooker  v.  Hammill,  7  Neb.  231;  Frey  v.  Drahos,  7  Neb.  194;  Moore 
V.  Kepner,  7  Neb.  291 ;  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  117;  Gordon  v. 
Jenney,  16  Mass.  465;  Young  «.  Willet,  8  Bosw.  (N.  Y.)  486;  Brizsee  v. 
Maybee,  21  Wend.  146. 

8  Rowley  v.  Gibbs,  14  Johns.  385. 

*  Odell  V.  Hole,  25  111.  204. 

»  Hooker  «.  Hammill,  7  Neb.  234. 


HOW    ASSESSED.  295 

ures  of  redress  may  be  proper  for  the  same  injury  suffered 
under  different  circumstances.  What  will  make  good  the  loss 
which  the  party  has  sustained,  owing  to  the  situation  in  which 
he  was  placed  when  the  injury  was  inflicted,  is  the  material 
question.  In  determining  this,  all  relevant  circumstances  ought 
to  be  carefully  considered.  ^ 

§  537.  Interest  as  a  measure  of  damage.  Interest  upon  the 
value  is  frequently  regarded  as  a  proper  measure  of  damages. 
The  common  rule  is  to  allow  it  in  all  cases  upon  the  value  of 
property  after  the  date  of  the  conversion,  unless  some  particu- 
lar reasons  exist  to  the  contrary. ^  AVheh  the  wrong  consists 
merely  in  the  detention  of  property,  (not  the  subject  of  daily 
use,)  without  waste  or  depreciation,  or  in  the  compulsory  post- 
ponement of  the  exercise  of  the  party's  rights  under  legal 
process,^  interest  is  allowed.  In  fact,  in  all  cases  where  dam- 
ages are  shown,  in  the  absence  of  proof  of  some  special  dam- 
ages, or  proof  that  they  were  more  or  less  than  interest,  inter- 
est upon  the  value  during  the  time  the  successful  party  was 
deprived  of  his  goods  will  usually  be  regarded  as  the  only 
proper  measure.* 

§  538.  How  assessed.  When  the  jury,  in  assessing  dam- 
ages for  defendant,  estimate  the  value  of  the  property  at  a 
time  subsequent  to  the  conversion,  they  cannot  add  to  this 
value  interest  from  the  time  of  conversion. ^  If  interest  was 
added  from  the  time  of  conversion,  such  an  assessment  would 

•  Shepherd  v.  Johnson,  2  East,  211;  Berry  v.  Vantries,  12  S.  &  R.  94; 
Backenstoss  v.  Stahler,  33  Pa.  St.  257. 

»  Hamer  v.  Hathaway,  33  Cal.  119:  McDonald  v.  North,  47  Barb.  530. 

3  Beals  V.  Guernsey.  8  Johns.  446;  Hyde  v.  Stone,  7  Wend.  354;  Bissell 
V.  Hopkins,  4  Cow.  53;  Kipley  «.  Davis,  15  Mich.  75;  Kobinson  v.  Barrows, 
48  Me.  186;  Oviatt  v.  Pond,  29  Conn.  479;  Jones  v.  Rahilly,  16  Minn.  322; 
Derby  v.  Gallup,  5  Minn.  119;  Scott  v.  Elliott,  63  N.  C.  215. 

*  Stat.,  3,  4,  AY.  IV.,  Ch.  42,  §  29;  Wood  v.  Braynard,  9  Pick.  322;  N.  Y. 
Guarantee  Co.  v.  Flynn,  65  Barb.  365;  Twinam  «.  Swart,  4  Lans.  (N.  Y.) 
263;  Stevens  v.  Tuite,  104  Mass.  333;  Oriusby -o.  Vermont  Copper  Co.,  50 
N.  Y.  623;  Allen  v.  Fox,  51  N.  Y.  567;  Bartlett  v.  Brickett,  14  Allen,  64; 
Suydam  v.  Jenkens,  3  Sandf.  (N.  Y.)  614;  Huggeford  v.  Ford,  11  Pick.  223; 
Mattoone.  Pearce,  12  Mass.  406;  Barnes  v.  Bartlett,  15  Pick.  78;  Caldwell 
V.  West,  1  Zab.  (21  N.  J.)  411;  Bonesteel  v.  Orvis,  22  Wis.  522;  Blgelow  v. 
Doolittle,  36  Wis.  119;  Williams  v.  Phelps,  16  Wis.  80. 

0  Atherton  v.  Fowler,  46  Cal.  323. 


296  DAMAGES. 

in  effect  amount  to  double  damages.*  "Wliere  considerable 
time  elapses  between  the  verdict  and  the  rendition  of  judgment, 
interest  for  that  time  cannot  be  included  in  the  judgment.^ 
This  will  not  prevent  the  judgment  from  drawing  such  interest 
as  is  allowed  by  law.*  In  some  States  the  officer  is  authorized 
to  seize  the  property  and  hold  it  for  a  limited  time,  to  enable 
the  plaintiff  to  give  bond.  If  the  plaintiff  fails  to  furnish  it, 
the  property  must  be  returned  to  the  defendant;  and  where 
such  is  the  case,  interest  upon  the  value,  with  any  depreciation 
or  injury  it  has  sustained,  is  proper,  together  with  the  expense 
of  replacing  the  property.* 

§  539.  Where  a  part  only  of  the  goods  are  found.  Where 
the  plaintiff  is  successful,  and  where  a  part  of  the  goods  sued 
for  were  not  found  by  the  officers,  and  have  not  been  delivered, 
the  plaintiff  is  entitled  to  recover  the  value  of  such  undelivered 
part;  and  interest  upon  such  value  from  the  time  of  taking 
may  also  be  added  as  proper  damages.  ^ 

§  540,  In  suit  on  bond.  In  an  action  upon  the  bond  for  a 
failure  to  make  return,  when  the  property  could  have  been 
returned  but  was  not,  and  was  converted,  the  value  with  interest 
thereon  was  allowed.^ 

§  541.  Whera  the  suit  is  concerning  the  validity  of  a  sale. 
"Where  the  contest  was  about  the  validity  of  a  sale  of  personal 
property,  value  at  the  time  of  seizure,  and  interest,  was  re- 
garded as  proper.'' 

§  542.  Where  defendant  is  a  stakeholder.  Where  the  de- 
fendant was  the  mere  stakeholder  of  two  certified  checks  for 
^2,500  each  were  replevied,  the  verdict  was,  "We,  the  jury, 
hnd  the  defendant  guilty,  and  that  the  property  replevied  in 

'  Freeborn  v.  Norcross,  49  Cal.  313.    See  Landers  v.  George,  49  Ind.  309. 

«  Atherton  v.  Fowler,  46  Cal.  326. 

s  Hamer  v.  Hathaway,  33  Cal.  119. 

<  Morris^.  Baker,  5  Wis.  389. 

6  Booth  V.  Ableraan,  20  Wis.  G02;  Graves  v.  Sittig,  5  Wis.  223;  Pacific 
Ins.  Co.  V.  Conard,  1  Baldwin,  C.  C.  142;  Dana  v.  Fiedler,  2  Kern,  (N.  Y.)  40; 
Brizsee  v.  Maybee,  21  Wend.  144;  Andrews  v.  Durant,  18  N.  Y.  500. 

«  Walls  V.  Johnson,  16  Ind.  374. 

'  Miller  v.  Whitson,  40  Mo.  100.  See,  also,  Woodburu  v.  Cogdal,  39  Mo. 
222;  May  berry  v.  Clille,  7  Cold.  (Tenn.)  118;  Blackie  v.  Cooney,  8  Nev.  44. 


VALUE   OB    PROPERTY.  297 

Baid  cause,  and  the  right  of  possession  of  the  same  is  in  the 
plaintiff,  and  we  assess  tlie  plaintiff's  damages  at  $6,275," 
judgment  upon  such  a  verdict  was  erroneous.  Tiie  only  dam- 
age which  the  defendant  could  in  any  event  recover  for  the 
Avrongful  detention  of  the  checks  was  the  intei-est  upon  the 
$5,000  from  the  time  of  the  demand  and  refusal  until  they 
they  were  replevied.' 

§  543.  Value  of  property,  when  allowed  as  damages. 
"When  the  plaintiff  obtains  possession  of  the  property  by  the 
"Writ,  and  retains  it  until  the  trial,  he,  of  course,  cannot  ask 
judgment  for  its  value;  when  the  property,  however,  is  not 
delivered  pending  the  suit,  the  plaintiff,  if  successful,  is 
entitled  to  a  judgment  for  the  property  or  for  its  value;  the 
vahie  in  such  case,  being  one  of  the  elements  of  damages, 
should  be  found  by  the  jur3^3  Jn  like  manner,  if  the  plain- 
tiff has  obtained  the  property  upon  his  writ,  and  the  verdict 
is  for  the  defendant,  the  judgment  usually  is  for  a  return  of 
the  goods.  The  finding  in  such  case  should  embrace  not  only 
the  damages  for  taking  and  detention,  but  also  the  value  of  the 
propert}^  and  the  judgment  is  for  the  value  in  case  the  plain- 
tiff fails  to  make  the  return  as  ordered  by  the  court. ^ 

§  644.  The  same.  So  when  the  defendant  retains  the  prop- 
erty by  making  claim  of  ownership,  and  giving  bond  under 
the  statute,  as  he  may  in  many  States;  upon  a  verdict  for 
the  plaintiff,  the  jury  should  find  the  value  of  the  property,  as 
well  as  the  amount  of  damage  for  detention,  so  that  the  plain- 
tiff' may  have  judgment  for  the  value  in  case  the  property  is 

'  Merchants'  S.  L.  &  T.  Co.  v.  Goodrich,  75  111  559. 

2  Merrill  v.  Butler,  18  Mich.  S94;  Bates  v.  Buchanan,  5  Bush,  (Ky.)  117. 
See  Gordon  ads.  Williamson,  20  N.  J.  L.  77.  The  same  results  are  readied 
in  Illinois  and  some  other  States,  when  the  count  in  trover  is  permitted  to 
be  filed  with  the  declaration  in  replevin  for  such  goods  as  the  officer  can- 
not find  to  deliver  upon  the  writ. 

2  Laborde  v.  Rumpa,  1  M'Cord,  15.  •  At  the  common  law,  whfn  the  plain- 
tiff complained  that  the  defenant  "still  detained  "  the  property,  lie  was 
entitled  to  judgment  for  the  value  as  well  as  damages  for  the  taking  and 
detaining.  Easton  v.  Worthington,  5  S.  &  R  (Pa.)  131;  Frazier  «.  Freder- 
icks, 4  Zab.  (24  N.  J.)  170;  Borron  v.  Landes,  1  Duv.  (Ky.)  299 ;  F.  K  B.  69; 
Petre  v.  Duke,  Lutw.  300. 


298  DAMAGES. 

not  delivered  to  him.^  "When  the  plaintiff  elects  to  proceed 
without  askin:^  delivery  of  the  goods  pending  the  suit,  as  he 
may  do  under  some  of  our  State  statutes,  in  case  he  succeeds, 
the  judgment  is  for  the  delivery  of  the  property  to  him,  or  the 
pajnnent  of  its  value.  And  where  his  petition  asks  for  dam- 
ages for  detention,  he  may  prove  the  value  of  the  property  as 
a  proper  element  of  damages  to  be  awarded  him,  the  action  in 
such  case  being  in  the  nature  of  trover.^  In  each  of  these 
cases  the  judgment  is  in  the  alternative,  for  the  property,  or 
in  case  it  cannot  be  had,  for  its  value.  These  rules  cannot  be 
said  to  be  universal  in  their  application.  In  some  of  the 
States  the  judgment  is  for  the  property  or  its  value,  at  the 
option  of  the  party  in  whose  favor  it  is  rendered.  In  the 
absence  of  local  laws  or  practice  to  the  contrary,  the  principles 
stated  will  apply. 

§  545.  When  value  is  regarded  as  attaching.  The  foregoing 
sections  may  to  some  extent  be  a  guide  as  to  when  the  value 
is  allowed  to  enter  into  tlie  question  of  damages;  and  that 
having  been  settled,  the  question  arises,  when  shall  the  value 
be  regarded  as  attaching.  What  point  in  the  history  of  the 
dispute  shall  be  seized  upon  as  the  moment  when  the  value 
shall  be  fixed. 

§  546.  Value  at  the  time  of  conversion.  A  large  number 
of  cases  hold  that  the  value  at  the  time  of  the  conversion,  or 
at  the  time  the  delivery  was  refused,  together  with  interest,  is 
the  proper  rule.^     This  question  is  exhaustively  discussed  in 

•Frazier  v.  Fredericks,  4  Zab.  (N.  J.)  163;  Field  v.  Post,  9  Vrooin, 
(N.  J.)  346. 

«  Pugh  V.  Calloway.  10  Ohio  St.  488. 

2  Jacoby  v.  Lanssatt,  6  S.  «&  R.  (Pa.)  300;  Ormsby  v.  Vermont  Copper  Co., 
56N.Y.  623;  Otter  u.  Williams,  31  111.118;  Whitfield  «.  Wiiittield,  40  Miss. 
353;  Greer  v.  Powell,  1  Bush.  (Ivy.)  489;  Keaga^y  v.  Hite,  13  111.  99;  Kob- 
insoa  v.  Barrows,  48  Me.  186;  Kennedy  v.  Whitwell,  4  Pick.  466;  Green- 
field Bank  v.  Leavitt,  17  Pick.  1;  Parsons  v.  Martin,  11  Gray,  (Mass.)  Ill; 
Pierce  v.  Benjamin,  14  Pick.  356;  Riply  v.  Davis,  15  Mich.  75;  Kennedy 
V.  Strong,  14  Johns.  138;  Bell  v.  Bell,  20  Geo.  250;  Spicer  v.  Waters,  65 
Barl).  327;  Hendricks  v.  Decker,  35  Barb.  398;  Lillard  v.  Whitaker,  3  Bibb. 
(Ky.)  93;  Sproule  v.  Ford,  3  Litt.  (Ky.)  26;  Baltimore  Ins.  Co.  v.  Dalrymple, 
25  Md.  369;  dishing  «.  Longfellow,  26  Me.  307;  Shepherd  ».  Johnson,  2 
East.  211 ;  Davies  v.  Kichardson's  Ex'rs,  1  Bay.  (S.  C.)  103 ;  Kipp  v.  Wiles, 


VALUE    AT    TIME   OF    CONVERSION.  299 

Whitfield  V.  Whitfield,  40  Miss.  352,  where  all  the  leading 
authorities  on  the  subject  are  considered,  and  the  court  con- 
cludes its  discussion:  "From  the  examination  which  we  have 
been  able  to  give  to  this  question,  we  think  that  may  be  safely 
affirmed:  1.  That  in  actions  for  taking  and  detaining  personal 
property,  where  no  question  of  fraud,  malice,  oppression  (or 
willful  wrong,  either  in  the  taking  or  detention,)  intervenes, 
the  measure  of  damages  is  the  value  of  the  property  at  the 
time  of  the  taking,  or  conversion,  or  illegal  detention,  with 
interest  thereon  to  the  time  of  trial;  and  this  is  a  rule  of  law 
to  be  decided  by  the  court.  2.  That  where  the  trespass,  deten- 
tion or  conversion  is  attended  by  circumstances  of  malice, 
fraud,  oppression,  or  willful  wrong,  the  law  abandons  the  rule 
of  compensation,  in  a  legal  sense,  and  the  measure  of  damages 
becomes  a  matter  for  the  consideration  of  the  jury,  guided  by 
the  evidence  before  them.  That  under  the  first  rule  stated 
may  be  embraced  all  cases  where  the  defendant,  neither  in  the 
taking  nor  in  the  detention  or  disposition  of  the  property,  has 
been  guilty  of  any  willful  wrong,  but  acts  in  good  faith,  and 
with  no  intent  injuriously  to  affect  plaintiff's  rights.  That 
under  the  second  rule  above  stated  may  be  embraced,  1,  all 
eases  where  the  original  act  was  willful  and  wrongful;  2,  or 
where  the  original  act  was  honafide,  but  the  subsequent  deten- 
tion, sale,  or  other  disposition  of  the  property,  after  a  knowledge 
of  plaintiff 's  claim,  was  willful  and  injurious;  3,  or  where  the 
original  act,  and  subsequent  disposition  of  the  property  for  a 

3  Sanclf.  585.  The  expense  of  teams,  etc.,  to  remove  the  property,  may 
become  part  of  the  damages.  Washington  Ice  Co.  v.  "Webster,  63  Me.  361. 
In  a  suit  for  damages  to  a  defendant  when  there  was  no  malice,  the  value 
of  the  property  at  the  time  it  was  replevied  was  held  to  be  the  proper  rule. 
Berthold  v.  Fox,  13  Minn.  507;  Garrett  v.  Wood,  3  Kan.  231.  In  trespass, 
the  value  at  the  time  the  trespass  was  committed.  Gilson  v.  Wood,  20  111. 
37.  When  the  form  of  the  action  is  assumpsit,  for  money  had  and  received, 
the  plaintiff  can  only  recover  the  sum  received,  not  the  value  of  the  goods. 
Rand  v.  Nesmith,  61  Me.  Ill ;  Rowan  v.  St.  Bank,  45  Vt.  160.  When  the 
plaintiff  was  assignee  of  goods  seized  by  the  sheriff,  on  execution,  and 
must  have  sold  them  if  they  had  come  to  his  hands,  the  jury  could  proi> 
erly  ascertain  the  price  at  which  they  were  sold  by  the  sheriff  at  auction, 
as  the  true  measure  of  damages.  Whitehouse  v.  Atkinson,  3  Car.  &  P.  (14 
E.  C.  L.)  344. 


300  DAMAGES. 

greater  price  than  its  market  value,  at  tlio  time  of  tlie  original 
taking,  were  all  in  ignorance  of  the  plaintiff's  rights,  but  the 
defenchint  seeks  to  retain  the  difference,  as  a  speculation  result- 
ing from  his  original  unintentional  wrong;  4,  or  where  the 
property  in  controversy  has  some  peculiar  value  to  the  plain- 
tiff, and  is  willfully  withheld  from  tlie  rightful  owner,  or  he 
has  been  deprived  thereof  hy  the  willful  and  wrongful  act  of 
the  defendant.  In  all  such  cases  it  is  the  peculiar  province  of 
the  jury  to  find  such  damages,  according  to  the  convictions  of 
their  own  understandings,  as  are  consistent  with  right;  not  as 
a  matter  of  law,  under  the  control  and  direction  of  the  court, 
but  as  a  rule  of  remedial  justice,  resting  in  their  discretion." 

§  547.  The  same.  In  England,  the  statute,  3  and  4  W.  lY. 
c.  42,  §  29,  allows  interest  upon  the  value  of  the  property  at 
the  time  of  the  seizure  or  conversion,  and  indicates  the  con- 
version as  the  time  at  which  the  value  should  be  fixed.  This 
is  the  rule  laid  down  in  many  well  considered  cases  in  this 
country.!  Where  the  plaintiff  was  non-suited,  the  defendant 
was  entitled  to  interest  upon  the  value  of  the  goods  from  the 
date  of  replevin. 3     The  same  principles  apply  in  trover.' 

§  548.  This  rule  applicable  when  the  value  of  the  property 
is  stable;  rule  when  the  value  varies.  The  rule  which  esti- 
mates the  value  at  the  time  of  conversion,  with  interest  from 
that  date,  is  equitable  in  cases  where  the  value  is  stable.  But 
when  the  value  is  changing,  the  rule  would  work  unjustly  in 
many,  probably  a  majority,  of  cases;  for  instance,  a  wrongful 
taker  could  select  the  time  when  property  was  low,  and  derive 
a  profit  by  seizing  and  disposing  of  it;  therefore,  where  the 
value  is  changing,  some  other  more  equitable  method  must  be 
devised. 


'  Yater  v.  Mullen,  24  Ind.  277.  What  it  would  take  to  replace  the  goods 
was  held  to  be  the  measure  of  damas^es;  ia  Starky  v.  Kelly,  50  N.  Y.  670. 
Tlie  value  of  the  property  at  the  time  it  should  be  restored;  in  Swift  v. 
Barnes,  IG  Pick.  196.  The  damages  not  governed  by  any  fixed  rule,  but 
arbitrary,  and  to  be  estimated  by  the  jury  in  view  of  all  the  circumstances. 
Jones  V.  Allen,  1  Head.  (Tenn.)  626.  The  value  with  interest  from  the  time 
of  the  conversion;  Greenfield  Bank  v.  Leavitt,  17  Pick.  3. 

»  Wood  V.  Braynard,  9  Pick.  322;  Barnes  v.  Bartlett.  15  Pick.  78. 

»  Barnes  v.  Bartlett,  15  Pick.  78. 


niGHEST  VALUE  AFTER  TARINQ  AND  BEFORE  TRIAL.   301 

§  5i9.  The  highest  value  after  taking  and  before  trial. 
Man  J  cases  regard  the  highest  value  between  the  time  of  con- 
version and  trial,  as  the  proper  one  to  be  fixed. ^  Markham 
V.  Jaudon,  41  IST.  Y.  (Hand.)  235,  was  a  case  where  the  plain- 
tiff furnished  a  margin  for  the  purpose  of  buying  stocks,  and 
the  defendant,  with  ten  per  cent,  of  plaintiff's  money  and 
ninety  per  cent,  of  his  own,  purchased  the  stocks  for  plaintilf. 
Defendant  sold  the  same  without  orders,  and  the  court  fol- 
lowing the  principles  laid  down  in  the  cases  last  cited,  gave 
damages  at  the  highest  prices  after  conversion  and  before 
judgment.  This  case  has  been  cited  and  followed  in  a  num- 
ber of  others.  And,  although  the  soundness  of  the  rule  has 
been  affirmed  as  a  general  principle,  its  universal  application 
has  been  denied. 

§  550.  The  same.  In  Matthews  v.  Coe^  49  N.  T.  57, 
Church,  Ch.  J.,  said:  "An  unqualified  rule,  giving  the 
plaintiff  the  highest  price  between  the  conversion  and  the 
time  of  trial,  cannot  be  U])held  on  any  principle  of  reason  or 
justice."  In  Baker  v.  Drake,  53  N.  Y.  213,  the  court  said: 
"The  rule  laid  down  in  Markhain  v.  Jaudon,  has  been  recog- 
nized in  several  cases  where  the  value  of  the  property  was 
fluctuating,  but  its  soundness  as  a  general  rule  has  been  seri- 
ously questioned  and  denied  in  various  cases."^  The  court 
there  reviewed  and  examined  a  number  of  leading  cases  upon 
this  subject,  and  concluded  that  the  principles  laid  down  in 
Markliarn  v.  J<iudon,  were  not  to  be  regarded  as  settled  rules 
to  which  the  principle  of  stare  decisis  should  apply.^ 

§  551.  The  same.  Observations  upon  the  rule.  It  ma}', 
however,  safely  be  said  that  this  rule,  though  somewhat  cir- 
cumscribed, continues  to  be  a  very  general  and  necessary  rule, 
Matthews  v.  Coe,  and  Baker  v.  Drake,  supra,  only  limiting 
or  directing  the  application,  but  not  superseding  the  rule.* 

'  Cortelyou  r>.  Lansing,  2  Cain's  Ca.  200;  Barnett  v.  Thompson,  37  Geo. 
335 ;  Burt  v.  Dutclier,  34  N.  Y.  493 ;  Markham  v.  Jaudon,  41  N.  Y.  (Hand.) 
239 ;  Morgan  «.  Gregg,  4(5  Barb.  183 ;  Wilson  o.  Mathews,  24  Barb.  295 ; 
Romain  ®.  Van  Allen,  20  N.  Y.  309. 

2  Baker  «.  Drake,  66  N.  Y.  518. 

8  Bee  Morgan  v.  Jaudon,  40  How.  Pr.  366 ;  Stewart  «.  Drake,  46  N.  Y.  449. 

<  Hamer  ».  Hathaway,  33  Cal.  119 ;  Douglass  ».  Kraft,  9  Cal.  503 ;  West  v. 


S02  DAMAGES. 

§  552.  The  same.  In  detinue  for  shares  of  stock  ^vlilch 
had  been  delivered  to  the  plaintiff  after  suit  was  brought,  the 
property  was  worth  £3  5s.  when  demanded,  and  £1  at  the 
time  of  delivery.  This  difference  the  plaintiff  was  allowed  to 
recover.  1  In  trover,  the  jury  are  not  limited  to  any  precise 
time,  but  may  fix  the  value  at  any  time  between  the  demand 
and  judgment.2  If  at  the  time  the  return  is  ordered,  the 
property  had  increased  in  value,  the  defendant  w^ould  be 
entitled  to  any  increase  that  occurred,  as  the  goods  are  his; 
if  it  had  diminished,  the  loss  ought  to  fall  upon  the  plaintiff, 
as  he  wrongfully  interfered  with  the  defendant's  possession, 
and  thus  occasioned  it.' 

§  553.  Qualifications  of  the  rule;  suit  must  be  brought 
within  a  reasonable  time.  This  rule  allowing  tlie  highest 
market  price  at  any  time  after  the  taking  and  before  judgment, 
is  without  doubt  sustained  by  a  large  number  of  the  cases  in 
this  country  and  England,  prior  to  the  statute  3  and  4  W.  lY. 
c.  42,  §  29.  The  rule,  however,  must  be  taken  with  this  qual- 
ification, that  the  suit  must  be  brought  within  a  reasonable 
time,  and  its  trial  urged  with  all  reasonable  diligence.  The 
plaintiff  has  no  right  to  wait  until  the  period  of  limitation  is 
about  to  expire,  nor  to  delay  his  suit  for  the  purpose  of  having 
a  longer  time  within  which  to  compute  damages.  It  is  a  rule 
of  doubtful  justice,  said  the  court,  to  give  the  plaintiff  the 
whole  period  of  the  statute  of  limitations  within  which  to 
select  his  standard  of  value.'* 

§  554.  The  same.  This  question  arose  in  California  upon 
the  replevin  of  hay  taken  in  1863,  when  it  was  worth  three  to 
five  dollars  per  ton.     The  trial  was  in  1869.     The  defendant 

"Wentworth,  3  Cow.  83;  Allen  v.  Dickers,  3  Hill,  593;  Blot  ij.  Boiceau,  3 
Comst.  85;  Lobdell  v.  Stowell,  51  N.  Y.  77;  Willard  v.  Bridge,  4  Barb.  361; 
Wilson  v.  Mathews,  24  Barb.  295 ;  Commercial  Bank  v.  Kortriglit,  22  Wend. 
348;  Kortriglit  v.  Cora.  Bank,  20  Wend.  91. 

1  Williams  v  Archer,  5  M.  G.  &  S.  318.  See  Archer  v.  Williams,  2  Car. 
&  K.  (61  E.  C.  L.)  26;  Barnett  v.  Thompson,  37  Geo.  335 ;  Morgan  v.  Gregg, 
46  Barb.  183. 

2  Johnson  v.  Marshall,  34  Ala.  528. 

»  Washington  Ice  Co.  v.  Webster,  62  Me.  341 ;  Mayberry  v.  Cliffe,  7  Cold. 
(Tenn.)  124. 
*  Scott  V.  Rogers,  31  N.  T.  678. 


WHAT   IS    HIGHEST   MARKET   VALUE.  303 

proved  that  in  ISGi  it  was  worth  thirty-eiglit  to  foi'tj  dollars 
per  ton.  The  court,  in  discussing  the  case,  said:  "If  a 
quantity  of  fruit,  strawberries,  for  instance,  be  taken  in  the 
season  of  the  greatest  plenty,  under  circumstances  which 
entitle  the  owner  to  indemnity  only,  and  suit  began  at  once 
to  recover  the  value,  trial,  in  the  ordinary  course  of  events, 
could  not  take  pkice  for  many  months.  In  the  meantime  the 
season  of  plenty  has  passed  and  the  price  has  risen  enormously, 
and  under  the  rule  allowing  the  highest  prices  the  plaintiff 
could  recover  the  enhanced  value  which  he  could  by  no  pos- 
sibility have  realized  himself."  Under  this  construction  the 
plaintiff  received  a  verdict  for  $25,763  for  property  not  worth 
more  than  $2,500  when  it  was  taken.  When  we  consider  that 
the  object  to  be  attained  is  indemnity  for  losses  actually  sus- 
tained, this  result  is  startling.  The  court  then  follows  the 
rule  laid  down  in  Scott  v,  I^ogers,  supra,  and  says  the  correct 
measure  of  damages  is  the  highest  market  price  within  a 
reasonable  time;i  and  this  agrees  with  the  rule  in  Cannon  v. 
I^^olsom,  2  Iowa,  101,  where  many  cases  were  cited,  and  with 
PiTikerton  v.  Railroad^  etc.,  42  N.  H.  424. 

§  555.  What  is  highest  market  value.  The  rule  is  also 
subject  to  the  following  additional  qualification,  that  the  term 
"  highest  market  value  "  embraces  only  such  changes  in  the 
market  as  are  due  to  the  ordinary  commercial  causes.  A 
sudden  panic,  or  unusnal  excitement,  or  conspiracy  among 
dealers,  may  give  any  article  of  merchandise  a  speculative  but 
purely  fictitious  value.  Such  prices  ought  not  to  be  taken 
into  consideration  by  the  courts  in  ascertaining  values  or 
damages  to  bo  awai'ded  to  contending  suitors.^  ^^  "the  high- 
est market  value,"  as  used  in  this  connection,  the  law  also 
contemplates  the  range  of  the  entire  market  and  an  average 
of  prices  running  through  a  reasonable  period  of  time,  not 
any  sudden  or  transient  inflation  or  depression  resulting  from 
causes  independent  of  the  operation  of  lawful  commerce. ^ 

§  556.     Further  qualification  of  the  rule.     The  rule  is  sub- 

>  Page  t.  Fowler,  39  Cal.  416. 

»  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  124. 

2  Smith  v.  Griffiths,  3  Hill,  333;  Durst  v.  Burton,  47  N.  Y.  175. 


304  DAMAGES. 

ject  to  the  fnrtlier  limitation  that  the  party  must  show  himself 
to  be  the  owner  of  the  property  for  which  he  claims  such 
damages.  For  example,  the  plaintiff  put  up  a  margin  and 
directed  the  defendant  to  purchase  stocks,  which  the  defendant 
afterwords  sold  without  plaintiff's  consent.  Here  the  specula- 
tion was  carried  on  with  the  defendant's  money.  If  the 
plaintiff  had  had  the  chance  of  profit,  he  was  subject  also  to 
the  cliance  of  a  decline,  whicli  he  avoided;  he  was  also  subject 
to  the  chance  of  his  not  availing  himself  of  the  use  of  the 
rise  at  the  proper  moment,  which  is  no  inconsiderable  element, 
and  the  fact  exists  that  if  the  stocks  had  risen  he  would,  per- 
haps, have  been  unable  to  make  further  advances  to  hold  them. 
The  value  of  the  stocks  in  such  case  would  be  improper.  The 
proper  course  would  have  been  for  the  plaintiff,  on  being 
notified  of  the  sale,  to  have  signified  his  disapproval  and 
directed  the  defendant  to  replace  the  stocks,  and  if  he  had  not 
done  so,  the  plaintiff  might  have  then  bought  the  stock  and 
charo-ed  him  with  the  loss  in  so  doing'.  The  circumstances  of 
a  case  like  this  will  not  warrant  the  transfer  of  all  the  chances 
of  loss  to  the  defendant,  holding  him  responsible  for  all  pos- 
sible chances  of  gain,  and  making  him  an  insurer  that  the 
plaintiff  would  have  made  that  gain.i  Where  the  goods  are 
of  a  kind  that  varies  in  quality,  and  one  party,  by  any  artifice, 
deprives  the  other  from  showing  the  real  quality,  the  pre- 
sumption as  to  quality  will  be  against  the  party  who  practices 
the  fraud. 2 

§  557.  Measure  of  damages  in  suit  for  a  note  or  bill.  The 
measure  of  damages  in  a  suit  for  a  bill  or  note  seems  to  be, 
prima  facie ^  the  amount  of  the  bill  or  note;  the  defendant, 
however,  may  give*  in  evidence  the  insolvency  of  the  maker, 
or  any  payment  made  on  it,  or  any  other  facts  showing  the 
real  value  of  the  instrument,  or  that  the  actual  damages  were 
less.'     If,  however,  defendant  has  done  any  act  to  diminish 

'  Baker  v.  Drake,  53  N.  Y.  211.     See  same  case,  6G  K  Y.  518. 

«  Bailey  v.  Shaw,  4  Foster,  (N.  H.)  301. 

8  Potter  V.  Merchants'  Bank,  28  N.  Y.  641 ;  Am.  Ex.  Co,  v.  Parsons,  44 
111.  318;  Keaggy  v.  Hite,  12  111.  99;  Menkens  v.  Menkens,  23  Mo.  253; 
In"-all8  V.  Lord,  1  Cow.  (N.  Y.)  240;  Bobbins  v.  Packard,  31  Vt.  570. 


VALUE   OF    COIN    ESTIMATED    IN    CURRENCY.  305 

the  valne,  if  he  has  mutilated  the  note  or  erased  a  signature 
from  it,  such  decrease  in  vaUie,  instead  of  being  allowed  in 
mitigation  of  damages,  must  be  made  good  bj  the  party  who 
caused  it;i  and,  as  a  rule,  nothing  done  by  the  defendant  while 
the  goods  are  in  his  wrongful  possession  can  avail  him  to 
reduce  the  damages  for  which  he  may  be  liable. ^  So,  if  the 
defendant  has  received  a  payment,  and  endorsed  it  upon  the 
note,  such  endorsement  is  no  ground  to  reduce  the  value. 
Bringing  the  money  into  court  for  the  plaintiff,  or  restoring 
the  note,  will  go  to  decrease  the  damages.  ^ 

§  558.  The  same.  Probably  the  most  concise  statement  of 
the  rule  generally  applicable  in  such  cases  is  that  the  measure 
of  damages  is  the  value  o^  the  note,  not  necessarily  the  amount 
due,  or  purporting  to  be  due  upon  it.*  When  the  plaintiff 
put  a  city  order  into  hand  of  parties  to  investigate  a  fraud  iu 
its  issue,  and  they  refused  to  return  it,  he  was  entitled  to 
recover  from  them  its  full  value;  as  it  could  not  be  collected 
from  the  city,  he  was  not  entitled  to  its  face  value. ^ 

§  559.  The  same.  A  bankrupt  gave  a  check  to  one  of  his 
creditors,  which  was  paid  by  the  bank  upon  which  it  was  drawn. 
The  assignee  brought  trover  and  obtained  a  verdict  for  the  full 
amount  of  the  check.  The  action  was  based  upon  the  fact  that 
the  check  was  drawn  by  the  bankrupt  without  authority,  his 
property  belonging  to  his  assignee.  The  verdict  was  set  aside. 
Mansfield,  C.  J.,  said,  "  the  plaintiff  proceeds  on  the  ground 
that  the  check,  being  drawn  by  a  bankrupt,  was  worthless.  If 
the  position  taken  be  true,  how  can  he  recover  £300  on  it."^ 

§  560.  The  value  of  coin  sometimes  estimated  in  currency. 
Coin  may  at  times  be  regarded  as  an  article  of  merchandise, 
upon  which  a  market  value  may  be  placed  in  ordinary  cur- 
rency. In  such  a  case,  it  was  said  that  the  measure  of  dam- 
ages for  its  non-delivery  was  properly  fixed  by  estimating  its 

»  McLeod  V.  McGhie,  2  M.  &  G.  (40  E.  C.  L.)  326 ;  Am.  Ex.  Co.  v.  Parsons, 
44  111.  318. 
«  Carter  v.  Streator,  4  Jones,  (N.  C.  L.)  63. 
»  Alsayer  v..  Close,  10  Mees.  &  W.  576. 

*  Turnei  v.  Retter,  58  111.  264. 

»  Terry  v.  Allis,  16  Wis.  479 ;  Terry  v.  Allis,  20  Wis.  33. 

•  Mathew  v.  Sherwell,  2  Taunt  439. 

20 


306  DAMAGES. 

value  in  currency  at  tlie  highest  price  between  the  time  o." 
taking  and  the  trial. ^  When  the  property  in  controversy  was 
a  billiard  table,  the  plaintiff  offered  proof  that  it  was  Avorth 
$500  in  gold  coin,  and  proved  its  value  in  legal  tender  or  green- 
backs, (to  which  an  objection  was  made,)  at  $1,200.  The  court 
permitted  the  evidence,  and  sustained  a  verdict  for  $950. ^ 

§  561.  Damages  occasioned  by  party's  own  act  not  allowed. 
Ko  one  should  be  permitted  to  recover  damages  which  are 
occasioned  by  his  own  act,  neglect  or  default.  When  the  plain- 
tiff failed  to  give  the  proper  bond,  and  to  take  possession  of 
the  property  described  in  his  writ,  he  could  not  recover  dam- 
ages for  any  deterioration,  or  for  the  detention  while  it  was  in 
the  hands  of  the  officer,  through  his  neglect  to  furnish  the 
security  required  by  law.^ 

§  562.  The  place  where  the  value  is  considered  as  attaching. 
The  place  where  the  value  is  to  be  considered  as  attaching  is 
sometimes  a  question  of  considerable  importance;  as  in  cases 
whtre  the  property  is  taken  or  detained  at  a  point  distant  from 
any  market  for  such  articles,  where,  perhaps,  it  could  not  be 
sold  at  any  price,  or  if  sold,  it  would  be  at  a  ruinous  sacrifice, 
while  at  a  neighboring  market  a  fair  price  might  be  obtained; 
or  where  the  property  may  have  been  taken  at  a  place  where 
there  was  no  market  for  it,  and  by  the  taker  transported  at 
great  cost,  and  sold  at  a  price  sufficient  to  pay  not  only  the 
cost  of  transportation,  but  a  fair  profit  upon  the  article.  In 
all  such  cases  it  becomes  a  question  of  no  little  difficulty  to 
determine  which  value  shall  be  regarded  as  attaching  to  the 
property,  the  value  at  the  place  of  taking,  or  at  the  distant 
market,  and  also  whether  the  costs  of  transporting,  when  such 
costs  have  been  incurred  by  the  taker,  shall  be  deducted.  A 
solution  of  these  questions  will  be  best  determined  by  a  refer- 
ence to  cases  involving  such  principles. 

§  563.  The  same.  General  rule  is,  value  where  the  goods 
were  detained ;  value  in  another  market  may  be  evidence.     As 

1  Taylor  v.  Ketclium,  35  How.  Pr.  (N.  Y.)  289 ;  Taylor  v.  Ketchum,  5  Robt. 
(N.  Y.)  507. 

2  Tarpy  v.  Shepherd,  30  Cal.  181. 

3  Graves  v.  Sittig,  5  Wis.  219.  See,  also,  Williams  v.  Phelps,  16  Wis.  80, 
where  this  case  was  commented  on. 


WHERE   VALUE   IS    CONSIDERED.  307 

a  general  rule,  it  may  be  stated  that  the  value  of  the  goods  at 
the  place  where  they  were  detained,  tliat  is,  at  the  place  where 
demand  was  made,  or  delivery  should  have  been  made,  is  tlie 
proper  one.  The  value  in  an  adjacent  market  may  be  proved 
as  a  fact  not  establisliing  the  value,  but  as  an  aid  to  assist  the 
court  or  jury  in  arriving  at  the  true  value  at  the  place  where 
the  detention  was  had;  and  cases  frequently  arise  where  such 
proof,  coupled  with  testimony  of  the  cost  of  reaching  such 
market,  becomes  relevant  and  proper  in  the  highest  degree. 
"Where  the  property,  however,  when  demanded,  is  situated  at 
or  adjacent  to  a  steady  and  reliable  market  for  such  goods,  the 
value  at  that  place  should  govern,  without  reference  to  a  dis- 
tant, thougli  perhaps  more  advantageous  one.^  In  trespass 
for  timber  cut  and  removed,  the  court  said ^the  plaintiff  might 
liave  recovered  his  logs,  had  he  chosen  to  pursue  them;  but  as 
he  elected  to  sue  in  trespass,  he  therefore  can  recover  only  the 
value  of  the  logs  at  the  place  where  the  injury  was  done.^  So, 
where  the  action  was  for  coal  dug  in  the  mine  of  another.  ^ 

§  564.  The  same.  Expense  of  transportation,  etc.  When  the 
action  was  for  hay  taken  in  Alameda  County,  and  afterwards 
transported  by  the  defendant  to  San  Francisco,  the  plaintiff 
claimed  the  highest  price  at  the  latter  place.  The  cour^  said  the 
market  value  was  to  be  ascertained  at  the  place  where  the  conver- 
sion was  had."*  In  Ilisler  v  Carr^  the  court  said.  "The  value 
which  the  plaintiff  is  entitled  to  recover  under  our  statute  is 
the  value  of  the  property,  to  be  ascertained  at  the  place  where 
it  is  detained,  when  the  action  was  commenced."  The  property 
in  this  case  was  produce,  part  of  which  was  shipped  to  San 
Francisco  and  sold.  The  plaintiff  claimed  the  gross  products 
of  the  sale,  while  the  defendant  claimed  that  a  deduction 
should  be  made  for  the  expenses  in  shipping,  etc.  The  court 
said,  in  substance,  that  where,  as  in  the  present  case,  the  plain- 
tiff complains  only  of  the  detention  of  the  property,  if  it  is 
delivered  on  demand,  his  claim  is  satisfied,  except  damages  for 

'  Fort  V.  Saunders,  5  Hiesk.  (Tenn.)  487 
»  Gushing  v.  Longfellow,  2G  Me.  306. 
s  Martin  v.  Porter,  5  M.  &  W.  353. 
*  Hamer  v.  Hathaway,  33  Cal.  120. 


308  DAMAGES. 

detention;  if  it  cannot  be  had,  then  the  value  at  the  place 
where  the  delivery  should  have  been  made  stands  in  lieu  of  the 
property.  IS[eitIier  the  price  at  San  Francisco,  nor  that  price 
less  the  freight  and  commissions,  is  the  true  criterion  of  tlie 
value  at  the  place  of  the  alleged  detention;  but  proof  of  the 
value  at  San  Francisco,  and  the  cost  of  transportation  there,  is 
admissible  to  assist  the  jury  in  fixing  the  value  at  the  place  of 
detention,^  The  cost  of  manufacturing  an  article,  and  its 
transportation  to  market,  may  properly  be  given  in  evidence, 
not  as  fixing  its  value,  but  as  a  fact  from  which  its  value,  at  the 
time  and  place  of  conversion,  may  be  arrived  at.^ 

§  565.  The  same.  The  suit  was  for  the  value  of  cattle 
which  died  of  disease,  through  the  wrongful  act  of  defendant, 
as  was  charged.  At  the  point  where  the  cattle  died  there  v ,  s 
no  market,  and  it  did  not  appear  that  any  marke<,  for  such 
cattle  was  to  be  found  within  two  hundred  miles.  The  (ourt 
allowed  evidence  of  the  value  at  this  distant  market',  the  price 
there  would  necessarily  be  some  guide  to  the  value  where  the 
cattle  were.  3 

§  566.  The  same.  Reason  for  the  rules  stated.  This  testi 
mony,  it  will  be  observed,  is  not  permitted  as  fixing  the  value, 
but  as  furnishing  a  guide  by  which  the  true  value  may  be 
ascertained,  by  a  process  not  unlike  the  computations  of  value, 
or  interest  which  has  always  been  allowed.  A  similar  prin- 
ciple has  been  recognized  in  a  late  case  in  Illinois.  The  action 
was  trover  for  the  value  of  cast  steel  ingots.  The  court  said 
there  being  no  testimony  as  to  the  value  of  these  ingots  at  the 
time  of  the  alleged  conversion,  for  the  reason  that  they  had  no 
market  value,  it  was  not  error  to  allow  proof  of  what  steel 
made  from  these  ingots  was  worth  per  pound  in  the  market, 
and  proof  of  how  much  it  would  cost  to  convert  these  ingots 
into  merchantable  steel;  thus  allowing  the  jury  to  make  a  fair 
approximation  of  the  value  of  the  ingots.'* 

'  Hisler  v.  Carr,  34  Cal.  645;  Swift  v.  Barnes,  16  Pick.  196;  Gushing  v. 
Longfellow,  26  Me.  310. 
2  Brizsee  v.  Maybee,  21  Wend.  144. 
«  Scllar  V.  Clelland,  2  Colorado,  533. 
*  Meeker  v.  Chicago  Cast  Steel  Co.,  84  111.  277.    Consult  in  this  connection 


TKESPASSER   CANNOT    PKOFIT    BY   WKONGFDL   TAKING.       309 

§  567.  Trespasser  cannot  recover  for  his  labor  in  increasing 
the  value.  A  partj^  cannot  commit  a  trespass  upon  liis  neigh- 
bor, and  tlien  charge  liim  with  the  expense  of  the  labor.  If 
so,  a  thief  might  cut  through  a  wall  and  cliarge  the  owner  for 
making  a  new  doorwaj'.  Where  a  trespasser  cut  wlieat,  he  was 
not  allowed  to  deduct  the  cost  of  cutting,  though  he  performed 
the  whole  labor  of  harvesting  it.^  So  where  timber  is  wrono-- 
fuUj  taken  and  made  into  shingles,  the  owner  may  recover  the 
value  as  shingles ;2  or  if  transported  to  a  distant  market,  the 
owner  may  recover  the  goods  or  value  at  that  market. '  The 
rule  may  be  regarded  as  general  and  well  settled  tliat  a  wrono-- 
doer  cannot  sell  the  goods  and  compel  the  owner  to  accept  the 
price  at  which  they  were  sold.  If  there  has  been  a  loss,  the 
owner  is  under  no  obligation  to  incur  it.* 

§  568.  Or  make  a  profit  out  of  his  wrongful  taking. 
^Neither  is  such  a  taker  or  detainer  permitted  to  make  a  profit 
out  of  his  wrong.  If  the  goods  have  been  sold  at  a  profit,  the 
owner  is  entitled  to  it,  and  the  wrongful  taker  cannot  assert 
any  right  to  it  which  is  not  based  upon  ownership  of  the 
property. s  In  Suijdam  v.  Jenhins,  3  Sandf.  (K.  Y.)  621,  after 
an  exhaustive  consideration  of  this  question,  the  court  laid 
down  the  rule  as  follows:  "Add  to  the  value  of  the  property 
when  the  owner  is  dispossessed,  the  damages  which  he  is 
proved  to  have  sustained  from  tlie  loss  of  its  possession."  It 
is  when  the  property  is  wrongfully  taken  or  detained  that  a 
right  of  action  accrues  to  the  owner.  He  is  then  entitled  to 
demand  a  compensation  for  his  loss;  and  if  his  demand  is 
then  complied  with,  it  is  plain  that  the  value  of  the  property 

Savercool  v.  Farwell,  17  Mich.  308;  Gregory  v.  McDowell,  8  Wend.  435. 
The  defendant  was  not  allowed  to  show  what  efiect  the  sale  of  so  lanre  a 
quantity  would  have  on  the  market.  Dana  v.  Fiedler,  2  Kern.  40;  Berry 
V.  Dwinel,  44  Me.  207;  Dubois  v.  Glaub,  52  Pa.  St.  238;  Doak  ».  The  Exr. 
of  Snapp,  1  Cold.  (Tenn.)  181;  Durst  «.  Burton,  47  JST.  Y.  175;  Sinith  v. 
Griffith,  3  Hill,  333;  Wemple  v.  Stewart,  22  Barb.  154. 

>  Bull  V.  Griswold,  19  111.  631. 

*•'  Baker  v.  Wheeler,  8  Wend.  506. 

2  Nesbitt  V.  St.  Paul  Lumber  Co.,  21  Minn.  492. 

*  Hamer  v.  Hathaway,  33  Col.  119;  Douglass  v.  Kraft,  9  Cal.  562. 

6  Whitfield  v.  Whitfield,  40  Miss.  352;  Mayberry  v.  Clifle,  7  Coldw.  (Tenn.) 
124;  Suydam  v.  Jenkins,  3  Sandf.  615. 


310  DAMAGES. 

at  that  time,  bj  wliicli  we  mean  its  market  value,  the  sum  for 
which  it  could  then  be  sold  would  constitute  at  least  a  portion 
of  the  amount  that  the  wrong-doer  would  be  bound  to  pay. 
This  sum  may,  therefore,  be  fairly  considered  as  a  debt  then 
due,  and  consequently  interest,  imtil  the  time  of  trial  or 
judgment,  must  in  all  cases  be  added  to  complete  the  indem- 
nity. It  is  not,  however,  in  all  cases  that  the  value  of  the 
property  when  the  owner  is  dispossessed  is  to  be  determined 
by  a  reference  to  its  market  price,  nor  in  all  that  the  damages, 
which  are  to  be  added  to  the  value,  are  to  be  limited  to  the 
mere  allowance  of  interest.  In  most  cases  the  market  value 
of  the  property  is  the  best  criterion  of  its  value  to  the  owner; 
but  in  some  cases  its  value  to  tlie  owner  may  greatly  exceed 
the  sum  that  any  purchaser  would  be  willing  to  pay.  The 
value  to  the  owner  may  be  enhanced  by  personal  or  family 
considerations,  as  in  the  case  of  family  pictures,  plate,  etc.; 
and  we  do  not  doubt  that  the  '''"pretium  affectionis^'^  instead 
of  the  market  price,  ought  then  to  be  considered  by  the  jury 
or  court  in  estimating  the  value.  In  these  cases,  however,  it 
is  evident  that  no  fixed  rule  to  govern  the  estimate  of  value 
can  be  laid  down,  but  it  must  of  necessity  be  left  to  the  sound 
discretion  of  a  jury.  But  where  an  assignee  for  the  benefit  of 
creditors,  who  must  have  sold  the  goods  had  they  come  to  his 
hands,  brought  suit  against  a  sheriff  who  had  seized  them  upon 
an  execution,  the  jury  might  properly  allow  the  amount  for 
which  they  were  sold  by  the  sheritf.  ^ 

§  569.  Statement  of  value  in  the  affidavit  usually  binds  the 
plaintiff,  but  not  the  defendant.  When  the  value  of  property 
is  to  be  assessed,  the  statement  in  the  affidavit  of  the  plaintiff 
as  to  the  value  is  frequently  regarded  as  estopping  him  from 
asserting  a  different  value.  After  fixing  the  value  at  a  time 
when  he  was  seeking  the  delivery  of  the  property  on  the  writ, 
he  should  not  be  heard  to  complain  of  the  value  so  fixed  by 
liimself;  but  the  defendant,  who  is  in  no  way  concerned  in  so 
fixing  the  value,  is,  of  course,  not  affected  by  it.^     This  rule 

'  Whitehouse  v.  Atkinson,  3  C.  &  P.  344. 

«  Gray  v.  Jones,  1  Head.  544;  Hujajgeford  v.  Ford,  11  Pick.  235;  Swift  v. 
Barnes,  IG  Pick.  196 ;  Middleton  d.  Bryan,  3  Maul.  &  S.  155 ;  Tuck  %.  Moses, 


APPRAISEMENT    DOES   NOT   BIND    EITHER   PARTY.  311 

may  in  some  cases  work  injustice,  and  in  exceptional  cases  the 
plaintiff  may  be  lieard  to  explain  what  is  in  ordinary  cases 
prhna  facie  evidence  against  him.i  Bat  this  does  not  au- 
thorize the  clerk  of  the  court  to  enter  up  judgment  against 
the  plaintiif  for  that  value,  upon  a  default  and  order  for  resti- 
tution. The  right  to  possession  or  title  to  property  is  the  real 
issue  to  be  tried,  and  not  the  value. ^  The  value  is  required  to 
be  found  in  certain  States  to  inform  the  court  what  judgment 
to  render  or  what  sum  to  collect  in  case  return  or  delivery  can- 
not be  had;  otherwise  the  value  is  immaterial  in  the  replevin 
suit. 3  When  the  property  is  expected  to  diminish  in  value  by 
lapse  of  time,  the  obligor  ought  to  be  bound  by  the  value 
stated  by  himself.*  The  enforcement  of  this  rule  is  calculated 
to  promote  a  fair  and  reasonable  estimate,  in  his  affidavit,  by 
the  party  seeking  the  delivery. 

§  570.  Appraisement  does  not  bind  either  party.  An 
appraisement  of  the  value,  under  the  statute,  and  a  return  of 
that  value,  does  not  preclude  either  party  from  offering  the 
testimony  of  competent  witnesses  so  as  to  show  the  real  value,^ 
as  in  such  case  neither  party  is  called  upon  to  act  in  making 
the  appraisal.  Neither  is  such  an  appraisal  binding  upon  the 
sheriff  who  caused  it  to  be  made.  But  in  case  an  officer  is 
sued,  his  return  of  an  appraisement  wliicli  he  caused  to  be 
made  may  be  admitted  as  yrima  facie  evidence  against  hira.^ 

§  571.  Special  damages  must  be  specially  pleaded.  Special 
damages  not  naturally  arising  from  the  tortious  act  complained 
of,  must  be  especially  alleged  in  the  declaration,  and  proved 
as  alleo'ed.''     The  circumstances  of  the  taking  need  not  be  set 

58  Me.  477;  Parker  c.  Simonds,  8  Met.  205;  Clap  «.  Guild,  8  Mass.  153; 
Washington  Ice  Co.  v.  Webster,  62  Me.  341. 

'  Gibbs  «.  Bartlett,  2  W.  &  S.  (Pa.)  34. 

"  Thomas  d.  Spoliord,  46  Me.  408. 

•  Cases  last  cited. 

*  Howei).  Handley,  28  Me.  251;  Swift  v.  Barnes,  16  Pick.  194;  Parker  o. 
Bimonds,  8  Met.  205. 

»  Kafer  v.  Harlow,  5  Allen,  348;  Leighton  tj.  Brown,  98  3Iass.  515;  Wright 
t).  Quirk,  105  Mass.  48. 

«  Sanborn  v.  Baker,  1  Allen,  521 ;  Kafer  v.  Harlow,  5  Allen,  (Mass.)  348. 

'  Bodley  i).  Reynolds,  8  Q.  B.  779 ;  Park  v.  McDaniels,  37  Vt.  594 ;  Damroa 
%.  Roach,  4  Humph.  (Tenn.)  134;  Slack  v.  Brown,  13  Wend.  390,  393;  Scho- 


312  DAMAGES. 

out  to  entitle  the  plaintiff  to  damages  commensurate  with  the 
injury  which  the  taking  occasioned  and  which  are  the  natural 
or  expected  result  of  such  taking ;i  and  under  a  general  alle- 
gation of  damages,  the  plaintiff  may  prove  any  depreciation 
in  the  value  of  the  goods  while  they  were  in  the  defendant's 
hands,  from  any  naturally  expected  cause ;3  but  any  and  all 
special  damages  from  whatever  causes  arising,  such  as  loss  of 
business  where  that  is  proper,  unexpected  depreciation  in  value 
of  the  property,  or  damages  from  any  wrongful  act  of  the 
party  subsequent  to  the  taking,  should  be  specially  alleged, ^ 

§  572.  Loss  by  interruption  of  business.  In  replevin,  as 
in  all  other  actions  in  the  nature  of  tort,  the  damages  should 
not  be  less  than  the  amount  of  loss  actually  sustained,  but  the 
loss  must  be  real,  not  speculative  or  probable  merely.'*  "Where 
the  landlord  wrongfully  cut  off  steam  power  from  his  tenant's 
mill,  the  tenant  had  a  right  to  suppose  it  was  permanent,  and 
dispose  of  his  stock,  machinery  and  fixtures,  on  the  best  terms 
he  could,  and  the  wrong-doer  should  be  held  liable  for  any 
loss  that  might  be  sustained  from  such  a  sale,  so  far  as  the 
same  was  the  natural  and  probable  result  of  the  landlord's 
wrongful  act.  In  estimating  the  loss  sustained  by  breaking 
up  his  established  business,  there  would  seem  to  be  no  well 
founded  objection  to  ascertain  the  amount  of  profits  which  it 

field  '0.  Ferrers,  46  Pa.  St.  438;  Armstrong  u.  Percy,  5  Wend.  535;  Strang 
V.  Whitehead,  13  Wend.  64;  Bennett  «.  Lockwood,  20  Wend.  223;  Smith  v. 
Sherwood,  3  Tex.  460;  Bogert  ■».  Burkhalter,  2  Barb.  525;  Vauderslice  «. 
Newton,  4  Comst.  (N.  Y.)  130;  Barrage  v.  Melson,  48  Miss.  337;  Stevenson 
®.  Smith,  28  Cal.  102;  Smith  «.  Sherman,  4  Cush.  (Mass.)  408;  Davis  -o. 
Oswell,  7  C.  &  P.  804.     See  White  v.  Suttle,  1  Swan.  (Teun.)  174. 

'  Schofield  t).  Ferrers,  46  Pa.  St.  43S;  Fagen  v.  Davison,  3  Duer.  153.  But 
see  and  compare,  Woodrutf  ».  Cook,  25  Barb.  505. 

2  Young  D.  Willctt,  8  Bosw^.  (N.  Y.)  486.  Even  though  the  damage  did 
not  accrue  until  some  time  afterward.  Dickinson  ti.  Boyle,  17  Pick.  78; 
Brown  ».  Cummings,  7  Allen,  507.  The  following  English  cases,  though 
none  of  them  cases  in  replevin,  illustrate  the  rule  requiring  special  dam- 
ages to  be  pleaded  specially:  Rose  d.  Groves,  5  M.  &  G.  613;  Sippora  t). 
Basset,  1  Sid.  325;  Lowden  v.  Goodrick,  Peake,  (N.  P.)  46;  Pettit  «.  Add- 
ington,  Peake,  (N.  P.)  63;  Lindon  ».  Hooper,  1  Cowper,  418. 

3  Stevenson  v.  Smith,  28  Cal.  103;  Strang  ».  Whitehead,  13  Wend.  64; 
Dewint  v.  Wiltsie,  9  Wend.  326. 

4  Baker  'o.  Drake,  53  N.  Y.  313;  Loker  c.  Damon,  17  Pick.  384. 


LOSS    OF    KEAL    OE   PROBABLE    rEOFITS.  313 

has  yielded  for  a  reasonable  period  next  preceding  the  time 
when  the  injury  was  inflicted,  leaving  the  other  party  to  show 
that  by  depression  in  trade  or  other  causes  they  would  have 
been  less.^ 

§  573.  The  same.  Prospective  profits.  This  rule  is  prob- 
ably more  liberal  than  that  sustained  by  the  current  of  author- 
ity, though  cases  may  be  found  to  support  it.  But  as  a  rule, 
damages  which  include  the  expected  profits  of  the  jarty  in 
business  with  the  hazard  attending  it,  are  usually  regarded 
speculative,  rather  than  real.^  For  example,  profits  which 
are  expected  from  the  use  of  circus  horses  in  the  circus  busi- 
ness, cannot  be  a  measure  of  damages;^  and  as  a  rule,  purely 
speculative  or  contingent  damages  can  never  be  allowed.^  The 
expected  profits  of  a  stock  speculation  carried  on  with  the 
defendant's  capital,  cannot  be  a  proper  element  of  damages  in 
a  suit  for  an  unauthorized  sale  of  stocks  by  the  defendant, 
who  was  the  broker. ^  The  profits  of  an  illegal  business  can- 
not be  an  element  of  damages  in  any  case.  The  expected 
profits  of  a  patent  machine  cannot  be  allowed.^  And  as  a 
general  thing,  loss  by  a  mercantile  firm  by  the  seizure  of  their 
goods  and  interruption  to  their  business,  and  consequent  loss 
of  expected  profits,  is  not  a  proper  element  in  computing 
damages.  "^ 

§  574.     Loss  of  real  or  probable  profits.     The  jury  may 

'  Chapman  ■p.  Kirby,  49  111.  219.  A  very  similar  case,  "White  v.  Moseley, 
8  Pick.  356.  See,  also,  Davenport  v.  Ledger,  80  111.578.  When  a  party 
leased  a  tavern  and  agreed  to  keep  a  certain  ferry  in  good  order,  and  after- 
ward diverted  the  travel  to  another  ferry,  the  lessor  was  allowed  to  recover 
his  rent,  but  not  expected  profits.     Dewint  v.  Wiltsie,  9  Wend.  320. 

•2  Bonesteel  v.  Orvis,  23  Wis.  524.  See  Seldner  v.  Smith,  40  Md.  603; 
Brannin  v.  Johnson,  19  Me.  361. 

3  Butler  V.  Mehrling,  15  111.  490.  See,  also,  Butler  v.  Collins,  12  Cal.  457 ; 
Campbell  v.  Woodworth,  26  Barb.  648. 

*  Houghton  V.  Peck,  8  Pa.  St.  42.     See  cases  last  cited. 

»  Baker  v.  Drake,  53  N.  Y.  211. 
Houghton  V.  Peck,  8  Pa.  St.  42. 

Selden  ■».  Cashman,  20  Cal.  57.  See  Allred  v.  Bray,  41  Mo.  484.  For 
wrongful  attachment,  plaintiff  was  allowed  to  prove  that  her  business  was 
destroyed  and  she  reduced  to  poverty.  Moore  ».  Schultz,  31  Md.  418.  See 
Oviatt  V.  Pond.  29  Conn.  479. 


314  DAMAGES. 

allow  for  the  loss  of  near  and  stable  or  probable  profits. *  So 
when  the  plaintiff's  bridge  was  carried  awaj  by  the  wrongful 
act  of  the  defendant,  the  loss  of  tolls  during  the  time  neces- 
sarily required  to  rebuild  it,  is  a  proper  element  of  damages.^ 
Of  course  the  jury  must  take  into  consideration  the  degree 
of  probability  that  the  party  would  have  made  a  profit -,3  and 
damages  can  never  include  expected  profits,  unless  it  appear 
affirmatively  that  the  party  was  absolutely  prevented  from 
realizing  them  by  some  act  of  the  party  in  default;*  a  party 
cannot  permit  his  business  to  lie  still  or  suffer  a  loss  of  profit, 
and  collect  the  damages  so  occasioned,  from  the  defendant. ^ 

§  575.  Party  claiming  damages  must  do  what  he  can  to 
avoid  loss.  A  party  may  show  that  he  has  done  all  in  his 
power  to  avoid  the  damaging  effect  of  the  defendant's  act,  and 
such  evidence  will  not  diminish  the  damages, «  If  a  trespasser 
willfully  leaves  his  neighbor's  gate  open,  and  cattle  enter  and 
destroy  his  crop,  the  trespasser  is  liable;  but  if  the  owner 
pass  it  before  the  cattle  enter,  and  refuse  to  shut  it,  he  cannot 
recover.'  The  rule  may  be  stated,  that  a  party  who  suffers 
injury  from  the  wrongful  act  of  another,  must  do  what  he  can 
to  render  the  evil  results  as  light  as  possible.^  Where  the 
defendant  took  the  plaintiff''s  horse,  which  was  useful  to  him 
in  the  way  of  trade,  he  was  allowed  the  cost  of  hiring  another 
horse,  less  the  amount  he  would  have  paid  for  keeping  his 
own  while  it  was  taken. ^ 

§  576.  Expenses,  counsel  fees,  etc.  Expenses  sometimes 
form  a  part  of  the  damage  which  a  party  has  really  sustained, 
and  the  question  as  to  how  far  they  can  be  reimbursed,  is  one 
of  considerable  importance.     As  a  rule,  expenses  of  the  party 

'  Mayberry  v.  Cliflfe,  7  Cold.  (Tenn.)  131.  Compare  Pacific  Ins.  Co.  v. 
Conartl,  1  Baldw.  (C.  C.)  138. 

'  Sewells  Falls  Bridge  v.  Fisk,  23  N.  H.  171. 

3  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  124. 

*  Palm  V.  The  Ohio  &  Miss.  R.  R.  Co.,  18  111.  217;  The  County  of  Chris- 
tian  V.  Overholt,  18  111.  223. 

»  Brizsee  v.  Mayboe,  21  Wend.  144. 

«  Chandler  v.  Allison,  10  Mich.  461 

'  Loker  v.  Damon,  17  Pick.  289. 

e  Cliandlcr  v.  Allison,  10  Mich.  401 

»  Davis  V.  Oswcll,  7  Car.  &  P.  804. 


EXPENSES,    COUNSEL   FEES,    ETC.  315 

in  endeavoring  to  recover  his  property,  time  spent  in  getting 
the  writ,  attending  court,  etc.,  are  not  alloM'able  as  part  of  tlie 
damages.  1  Neither  are  counsel  fees  and  other  expenses  of 
the  suit,  apart  from  the  costs  adjudged,  strictly  recoverable  in 
the  way  of  damages.^  The  only  ground  on  which  they  should 
be  allowed  is  in  case  where  the  jury,  as  a  matter  of  discretion 
with  which  they  may  be  vested,  consider  the  expenses  in  order 
that  the  plaintiff  may  not  be  impoverished  by  the  cost  of 
asserting  his  right  in  court. ^  In  Connecticut  the  rule  appears 
to  be  that,  when  the  injury  is  wantonly  inflicted,  the  expenses 
of  litigation  may  be  included  as  a  proper  part  of  tlie  dam- 
ages.* 

§  577.  The  same.  In  PacijiG  Ins.  Co.  v.  Coriard,  1  Bald- 
win, (U.  S.  C.  C.)  138,  the  court  instructed  the  jury  that  in 
cases  M'here  the  taking  was  willful,  the  expenses  which  the 
party  has  been  put  to,  to  assert  his  rights,  might  properly  be 
taken  into  consideration  by  them  in  making  up  their  estimate 
of  damao-es.  In  New  York  it  was  said  that  where  the  takino* 
was  wrongful,  the  plaintiff  may  recover  a  reasonable  amount 
for  time  and  expense  incurred  in  endeavoring  to  reclaim  his 
property. 5  Where  the  defendant  took  the  plaintiffs'  horse 
and  wagon,  by  reason  of  which  the  plaintiffs  were  induced  to 
think  that  the  person  to  whom  they  let  it  had  absconded,  and 
they  expended  considerable  time  and  money  in  search  of  their 
property,  the  value  of  the  time  and  the  amount  of  the  expenses 
were  allowed  as  a  proper  element  of  damages.^  In  an  action 
for  false  imprisonment,  for  an  illegal  arrest  of  plaintiff,  evi- 
dence of  the  value  of  the  counsel's  fees  was  not  admitted,  not 

*  Black  well  v.  Acton,  38  Ind.  426.  But,  contra,  see  Bennett  v.  Lock  wood, 
20  Wend.  222. 

2  Park  V.  McDaniels,  37  Vt.  594;  Earl  v.  Tupper,  45  Vt.  287;  Hoadley  v. 
Watson,  45  Vt.  289;  Pacific  Ins.  Co.  v.  Conard,  1  Baldwin,  (C.  C.)  138. 

«  Williams  «.  Ives,  25  Conn.  568;  Parsons  v.  Harper,  16  Gratt.  (Va.)  64; 
Earl  B.  Tupper,  45  Vt.  275;  Hoadley  v.  Watson,  lb.  289. 

4  Linsley  v.  Bushnell,  15  Conn.  225;  Welch  v.  Durand,  36  lb.  182;  Piatt 
V.  Brown,  30  Conn.  336;  Dibble  v.  Morris,  26  Conn.  416;  Ives  v.  Carter,  24 
Conn.  392;  Beecher  v.  Derby  Bridge  Co.,  24  Conn.  491. 

»  McDonald  v.  North,  47  Barb.  530.  See  Tantis  v.  Biirditt,  2  Dana,  (Ky.) 
254. 

«  Bennett  v.  Lockwood,  20  Wend.  223. 


316  DAMAGES. 

beino  specifically  laid  in  the  declaration  J  In  Wisconsin  it 
has  been  held  that  counsel  fees  can  no  more  be  allowed  in 
actions  where  vindictive  damages  are  given  than  in  other 
actions.  If  they  can  be  given  by  the  jury  it  must  be  on  the 
principle  that  they  are  consequential  and  relate  to  the  amount 
of  the  compensation  proper  to  award,  rather  than  that  they 
enter  directly  into  the  compensation. ^  So,  in  Indiana,  in  a 
suit  on  the  bond,  it  was  said  the  plaintiff  cannot  recover  fees 
paid  his  counsel  in  the  replevin  case,  nor  in  the  suit  on  the 
bond,  nor  is  he  entitled  to  any  fees  for  his  own  attendance  in 
the  furthering  of  his  suit.^  In  Yermont  the  rule  has  been 
stated  that  counsel  fees  did  not  form  a  proper  element  of  dam- 
ages.'* So,  also,  in  Michigan. ^  In  Ohio  the  supreme  court 
said  in  substance,  that  in  cases  nominally  in  tort,  where  no 
real  malice  is  complained  of,  counsel  fees  ought  not  to  be 
included;  but  when  the  act  complained  of  involves  the  ingre- 
dient of  malice,  or  insult,  the  jury  which  has  the  power  to 
punish  has  necessarily  the  right  to  include  counsel  fee  in  their 
estimate  of  damages,  if  they  see  proper  to  do  so.^ 

§  578.  Expense  of  taking  and  removing  the  property.  The 
expenses  of  taking  and  moving  the  property  by  the  oflScer 
should  not  be  included  in  the  damages.  They  constitute  a 
part  of  the  costs  of  the  case  and  should  be  so  assessed. "^ 
Where  an  officer  seized  horses  of  A.  on  an  execution  against 
him  and  A.  afterwards  replevied  the  horses  from  the  custodian 
in  whose  charge  they  were  left,  and  afterwards  suffered  non- 
suit in  the  replevin  case,  the  costs  of  keeping  the  horses  was 
held  a  part  of  the  costs  on  the  execution."  In  Illinois,  in  a 
suit  on  a  replevin  bond,  the  court  said  that  where  the  party 

'  Strang  v.  Whiteliead,  12  Wend.  64. 

«  Fairbanks  v.  Witter,  18  Wis.  287. 

s  Davis  V.  Crow,  7  Blackf.  130;  Blackwell  v.  Acton,  38  Ind.  425. 

*  Earl  V.  Tupper,  45  Vt.  275;  Hoadley  v.  Watson,  lb.  289. 

'  Hatch  V.  Hart,  2  Gil)bs,  (Mich.)  289;  Warren  v.  Cole,  15  Mich.  269. 

*  Roberts  v.  Mason,  10  Oliio  St.  277.  See,  contra,  Day  v.  Woodworth,  13 
How.  363. 

'  Young  V.  Atwood,  5  Hun.  (N.  Y.)  234.  Compare  Washington  Ice  Co. 
V.  Webster,  62  Me.  341. 

e  Davis  v.  Crow.  7  Blackf.  131. 


EXPENSE   OF   TAKING    AND    REMOVING    PEOrERTY.  817 

was  driven  to  compulsory  process  to  secure  the  property  which 
was  ordered  to  be  returned  to  him  in  the  replevin  suit,  ho 
could  recover  the  costs  of  so  doing  in  his  action  on  the  bond. 
The  costs  of  the  return  were  not  a  part  of  the  costs  for  which 
he  could  have  judgment  in  tlie  replevin  suit  and  were  a  proper 
item  in  the  suit  on  the  bond.^ 

'  Langdoc  v.  Parkinson,  3  Bradw.  (111.)  136. 


318 


DAMAGES. 


CHAPTER   XYIII. 


DAMAGES.  —  Continued. 


Section, 

Value  of  the  use;  when  proper 
to  be  allowed  ....  579 

This  applies  only  to  replevin    .  580 

The  same.  Not  allowed  a 
pledgee  or  an  ofQcer  of  the 
law 581,583 

The  same.  Not  allowed  unless 
the  property  is  chiefly  valu- 
able for  its  use        .        .        .  583 

Where  the  successful  party  has 
only  a  limited  interest    584  to  536 

The  same.  As  between  the 
owner  of  a  limited  interest 
and  an  intruder      .        .        .  587 

The  same.  Between  the  gen- 
eral owner  and  the  owner  of 
a  limited  interest    .        .  588,  589 

Damages  against  ofBcers  for 
wrongful  seizure     .        .        .  590 

The  same.  Against  officers  act- 
ing in  good  faith     .        .        .  591 

The  same.  Officer  acting  with 
malice 593 

The  same.  Where  the  suit  is 
by  the  general  owner      .        .  593 

The  same.  Where  the  suit  is 
by  one  without  right      .        .  594 

Damages  against  officer  for  fail- 
ure in  his  duty        .        .  595,  596 

In  suits  between  different  offi- 
cers   597 

Damages  between  joint  own- 
ners 598,599 

Effect  of  the  death  or  destruc- 
tion of  the  property        .  600,  601 


Section. 

The  same.  Death  of  slaves 
pending  suit  does  not  affect 
the  right  to  judgment  for 
value 

The  same.    Emancipation 

Judgment  when  the  property  is 
lost  or  destroyed 

Damages  allowed  only  where 
the  defendant  is  entitled  to  a 
return       

Option  of  the  defendant  to  pay 
value  or  return  the  goods; 
when  allowed 

Damages  to  compel  return 

When  and  how  assessed    . 

Generally  dependent  on  local 
statutes 

Value  and  damages  should  be 
separately  assessed 

Recovery  cannot  be  for  a  great- 
er  sum  than  is  claimed  . 

Damages  for  property  severed 
from  real  estate;  value  as  a 
chattel      .        .        .        612  to  614 

The  circumstances  under  which 
the  severance  was  made,  ma^ 
terial  to  be  considered    . 

Trees  cut  upon  the  land  of 
another  by  mistake 

The  general  rule  stated  appli- 
cable to  various  changes  in 
the  property    .... 

Vindictive  damages;  when  al- 
lowed      .... 

The  general  principles      . 


603 
603 

604 


605 


606 
607 
008 

609 

610 

611 


615 


616 


617 

618 
619 


VALUE  OF  THE  USE,  WHEN  PEOPER  TO  BE  ALLOWED. 


!ia 


The  same.  The  meaning  of 
the  terms  "  punitive,"  "  exem- 
plary" and  "vindictive"  620,  621 

The  same.  Actual  malice  or 
gross  carelessness  must  be 
shown 622 

No  general  rule  exists  for  esti- 
mating      623 

Illustrations  of  the  principles 

624  to  626 


Party  who  acts  in  defiance  of 
another's  rights  is  responsi- 
ble for  all  consequence3         .  627 

Vindictive  damages  against  offi- 
cers  of  the  law        .        .  623,  629 

Accounts  cannot  be  adjusted  in 
replevin 630 

But  questions  of  set  off  ma)'  be 
investigated  in  certain  cases  .  631 

Illustrations  of  the  rule     .        ,  633 

Set  ott"  to  suit  upon  bond  .        .  633 


§  579.     Value  of  the  use,  when  proper  to  be  allowed.     In 

many  cases  the  property  in  dispute  may  possess  considerable 
value  for  use,  and  small  value,  as  merchandise,  for  sale  or  for 
consumption.  In  such  cases  the  value  of  the  use  is  frequently 
adopted  as  the  measure  of  damages.  For  example,  where 
work-cattle  or  horses,  tools,  or  implements  of  trade  or  hus- 
bandry, are  taken  from  the  owner,  who  is  thereby  deprived  of 
their  use,  the  reasonable  value  of  that  use  will,  in  many  cases, 
be  the  only  just  compensation  for  their  detention.^  It  would 
be  highly  unjust  to  hold  that  a  party  might  take  a  span  of 
horses  worth,  sa}'  one  hundred  and  iifty  dollars,  and  detain 
them  a  year  and  then  pay  six  per  cent,  on  the  value  as  com- 
pensation to  the  owner, 2 

§  580.  This  applies  only  to  replevin.  This  rule,  allowing 
the  value  of  the  use,  is  peculiar  to  the  action  of  replevin.  It 
grows  out  of  the  fact  that  the  plaintiff  asserts  his  continued 
ownership  in  the  property,  and  seeks  to  recover  the  property 
and  not  its  value.  If,  as  in  trover,  the  value  was  sought,  of 
course  compensation  for  the  use  of  the  property  to  the  party 
who,  by  his  action,  asserts  a  transfer  of  title,  would  be  absurd,^ 
It  only  applies  in  cases  where  the  party  claiming  the  use  is 

'Allen  V.  Fox,  51  N,  Y.  562;  Morgan  v.  Reynolds,  1  Blake,  (Mon.) 
164;  Carroll  v.  Pathkiller,  3  Port.  (Ala.)  281;  Hanauer  v.  Bartels,  2  Col. 
524;  Fralick  v.  Presley,  29  Ala.  463;  Ciapp  v.  Walters,  2  Tex.  130; 
Machette  v.  Wanless,  2  Col.  ISO;  Clements  v.  Glass,  23  Geo.  395;  Dor- 
sey  V.  Gassaway,  2  Har.  &  J.  402.  For  a  case  where  the  value  of  the 
use  was  not  allowable,  see  Twinam  v.  Swart,  4  Lans.  263.  See,  also,  Young 
V.  Atwood,  5  Hun,  234. 

*  Williams  v.  Phelps,  16  Wis.  85. 

»  McGavock  v.  Chamberlain,  30  111.  220;  Allen  v.  Fox,  51  N.  Y.  564. 


320  DAlkTAGES. 

in  a  situation  to  use  it,  and  has  a  right  to  nse  it,^  and  only  ap- 
plies to  cases  where  the  property  can  be  put  to  use.  It  is  for 
only  the  loss  of  the  use  of  property  which  the  party  is  in  a 
situation  to  use,  and  can  use,  that  the  value  of  the  use  is 
allowed. 

§  581.  The  same.  Not  allowed  a  pledgee  or  an  officer  of  the 
law.  A  mere  pledgee  of  goods  has  no  right  to  use  them.  So, 
when  the  defendant  had  a  judgment  for  the  return  of  a  sew- 
ing machine,  on  the  assessment  of  damages  the  defendant 
claimed  to  be  the  owner,  and  testified  as  to  the  monthly  value 
of  the  use.  The  plaintiff  offered  to  show  that  the  defendant 
obtained  the  machine  as  a  pledge  or  security  for  a  debt,  and 
this  defense  was  held  good,  and  a  judgment  for  the  defendant 
for  the  value  of  tlie  use  was  reversed ;"  and,  following  the 
analogies  of  this  case,  an  officer  of  the  law,  who  has  seized 
property  on  an  execution,  has  no  right  to  use  the  property;  the 
value  of  the  use  should  not  be  assessed  in  his  favor.  ^ 

§  582.  The  same.  Where  the  property  was  valuable  for  use, 
plaintiff  may  recover  the  value  of  the  use  during  the  time  he 
was  deprived  of  it,  but  not  the  natural  depreciation  in  value 
during  the  same  time;  though  when  the  property  is  incapable 
of  use,  the  natural  depreciation  in  value  may  be  given."* 
Neither  can  a  party  be  entitled  to  interest  on  the  value,  and 
at  the  same  time  the  value  of  the  use.  Where  use  is  allowed 
it  excludes  other  compensations  during  the  period  for  which 
the  use  is  allowed.  When  a  horse  was  bailed  to  defendant  to 
feed,  and  he  used  it,  and  it  afterwards  died,  though  not  in  con- 
sequence of  such  use,  the  plaintiff  could  not  recover  for  the 
use,  in  an  action  of  trover.  Perhaps  assumpsit  for  the  use 
might  have  been  proper.  ^ 

§583.  The  same.  Not  allowed  unless  the  property  is  chiefly 
valuable  for  its  use.  Where  the  property  is  valuable  chiefly  as 
merchandise,  kept  for  sale  or  consumption,  and  not  for  use,  its 

>  Barney  v.  Douglass,  22  Wis.  464. 
»  McArthur  v.  Howett,  72  111.  359. 

^  See  in  this  connection,  Twinan  v.  Swart.  4  Lans.  263;  Broadwell  v,  Para- 
dice,  8*1  111.  474. 

*  Odell  V.  Hole,  25  111.  208;  Garrett  v.  Wood,  3  Kaa.  231. 

•  Johnson  v.  Weedman,  4  Scam.  496. 


WHERE   SUCCESSFUL   PARTY   HAS    LIMITED    INTEREST.        321 

value  as  mercliandise,  and  intereftt,  and  not  the  value  of  its  use, 
is  the  proper  measure  of  damaj^es.^  And  generally,  the  plain- 
tiff can  never  recover  tlie  value  of  the  use  unless  he  shows  the 
property  to  be  valuable  only  for  its  use,  and  that  he  is  in  a  sit- 
uation where  its  use  is  a  matter  of  right. 

§  584.  Where  the  successful  party  has  only  a  limited  in- 
terest. Where  the  successful  party  in  replevin  has  only  a  lim- 
ited interest  in  the  property  in  dispute,  as,  for  example,  a 
leasehold  interest,  or  a  lien  for  a  limited  amount,  he  cannot,  as 
against  the  oreneral  owner,  recover  damao^es  orreater  in  amount 
than  the  value  of  that  limited  interest.  The  justice  of  this 
rule  is  apparent.  In  a  contest  between  the  owner  of  the  gen- 
eral property  and  the  owner  of  a  limited  interest  in  the  same 
property,  the  rights  of  each  can  be  defined  and  protected. ^ 
To  illustrate:  When  the  Interest  of  the  plaintiff  was  only  an 
execution,  and  the  other  party  was  the  general  owner, ^  or, 
where  the  action  was  by  one  who  had  a  life  estate  in  slaves 
against  tlie  remainderman^  the  value  of  the  life  interest,  and 
not  the  full  value  of  the  slaves,  was  allowed.* 

§585.  The  same.  Distress  for  rent.  When  the  suit  was  for 
the  replevin  of  a  distress  for  rent,  and  the  tenant  fjiiled  to 
prosecute  his  suit,  and  a  return  of  the  property  was  awarded, 
in  a  suit  on  the  bond,  the  suit  was  regarded  as  between  the 
owner  of  a  limited  interest  against  the  owner  of  the  general 
title;  the  measure  of  damages  was  only  the  value  of  the 
limited  interest;  that  is,  the  amount  of  rent  due,  and  not  the 
full  v?jue  of  the  proj)erty  replevied. ^  So,  when  the  defend- 
ant in  the  replevin  had  not  paid  for  the  goods,  and  could  not 
be  held  liable  to  pay  for  them,  he  could  not  recover  on  the 

'  Hanauer  v.  Bartels,  2  Col.  515;  Machette  v.  Wanless,  3  Col.  170;  Shep- 
herd V.  .Johnson,  2  East,  211;  Clark  v.  Piuney,  7  Cow.  681;  Goulet  v.  Asse- 
ler,  22  N.  Y.  225;  Bouesteel  v.  Orvis,  22  Wis.  522;  Allen  v.  Fox,  51  N.  Y. 
564. 

•^  Townsend  v.  Bargy,  57  N.  Y.  665 ;  Weaver  v.  Darby,  42  Barb.  411 ;  War- 
ner  v.  Hunt,  30  Wis.  200;  Childs  v.  Childs,  13  Wis.  19;  Lloyd  v.  Goodwin, 
12  S.  &  M.  (Miss.)  233;  Williams  v.  West.  2  Ohio  St.  86;  Rhoads  v.  Woods, 
41  Barb.  471;  Allen  v.  Judson,  71  N.  Y.  77. 

3  Booth  V.  Ableman,  20  Wis.  22. 

*  Lloyd  V.  Goodwin,  12  S.  &  M.  (Miss.)  223. 

»  David  V.  Bradley,  79  111.  318. 
21 


322  DAMAGES. 

bond  any  more  than  the  jnrj  may  find  tliey  would  have  gained 
by  the  sale  of  the  goods  if  he  had  retained  them.^ 

§  586.  The  same.  Where  the  interest  is  an  execution. 
"Where  the  interest  of  the  plaintiff  was  only  an  execution 
against  the  defendant,  or  a  lien  on  the  property,  the  damages 
should  be  limited  to  the  amount  of  the  execution  or  lien,  and 
the  defendant  may  show  that  it  is  paid  or  discharged  in  miti- 
gation of  damages,  and  the  burden  of  showing  the  amount  of 
the  execution,  where  it  is  relied  upon,  is  on  the  party  who 
relies  on  it.^ 

§  587.  The  same.  As  between  the  owner  of  a  limited  inter- 
est and  an  intruder.  But  where  the  contest  is  between  the 
owner  of  a  limited  interest  in  a  chattel  and  an  intruder,  who 
has  no  interest  in  the  property,  the  owner  of  the  limited  in- 
terest is  entitled  to  recover  thje  property,  or  its  full  value; 
because  he  may  be  liable  to  account  to  the  general  owner. ^ 
Where  the  suit  is  brouglit  by  a  bailee,  or  one  holding  a  special 
property,  against  the  holder  of  the  general  title,  he  recovers  the 
value  of  his  special  interest,  and  not  the  value  of  the  property. 
Thus,  if  one  hire  a  horse  for  a  term,  and  it  be  taken  from  him 
by  the  owner,  before  the  term  expires,  he  could  recover  the 
value  of  his  interest,  and  not  the  full  value  of  thehorse.*  The 
same  rale  prevails  when  the  party  connects  himself  with  the 
general  owner  as  bailee,  or  in  any  way  showing  himself  respon- 
sible to  the  general  owner,  he  is  entitled  to  recover  the  full 
value  as  against  any  one  who,  without  right,  interferes  with  the 
property.^ 

§688.  The  same.  Between  the  general  owner  and  the  owner 
of  a  limited  interest.  The  general  rule  may  be  stated,  that  in 
an  action  between  the  general  owner  and  one  having  a  lien  or 

'  Seldner  «.  SmUh,  40  Md.  603. 

«  Bcxilh  V.  Ableinan,  20  Wis.  21 ;  Seaman  -5.  Luce,  23  Barb.  240. 

«  Frei  v.  Vogel,  40  Mo.  150;  Dilworth  v.  McKelvy,  30  Mo.  150;  Falon  v. 
Manning.  85  Mo.  271;  Frey  ».  DraUos,  7  Neb.  194. 

*  White  V.  Webb,  15  Conn.  305;  Faulkner  v.  Brown,  18  Wend.  64;  Inger- 
soll  V.  Van  Bokkelin,  7  Cow.  670;  Alkins  v.  Moore,  82  111.  240;  Rlioads  v. 
Wooda,  41  Barb.  471;  David.son  v.  Gunsolly,  1  Mich.  888;  Beiijamia  v. 
Stremple,  13  111.  468;  liviis  v.  Hamliu,  23  Wis.  669. 

»  Booth  v.  Ableman,  20  Wis.  21 ;  Leonard  v.  Whitney,  109  Mass.  2G6. 


AGAINST    OFFICERS    FOR    "WRONGFUL    SEIZUKE.  323 

a  limited  interest,  when  the  latter  prevails  he  is  entitled  to 
damages  the  amount  of  his  lien,  or  value  of  his  q>ecial  prop- 
erty ;i  but  as  agent,  a  stranger  who  replevins  property  without 
right,  the  defendant,  no  matter  if  his  interest  be  limited,  is 
entitled  to  a  return  of  the  goods,  or  their  full  value.  This  rule 
is  shown  to  be  very  ancient  in  Lijle  v.  Barker^  5  Binn.  (Pa.) 
458,  wdiich  was  an  action  against  the  sheriff  for  trespass  in 
breaking  the  plaintiff's  close  and  taking  pipes  of  wme.  The 
wine  belonged  to  one  Morris,  but  was  held  by  the  plaintiff  as 
collateral  for  money  lent,  and  the  court  allowed  the  full  value, 
for  the  reason,  that  upon  payment  of  his  claim,  the  plaintiff 
was  liable  to  surrender  the  wine  or  pay  the  full  value, 

§589.  The  same.  When  the  plaintiff 's  title  is  legally  di- 
vested after  suit  brought,  and  before  trial,  he  can,  as  against 
the  owner,  recover  nothing  beyond  costs,  and  such  damages  as 
he  may  have  sustained  up  to  the  time  his  title  was  divested ;2 
and  the  court  will  always  hear  evidence  to  show  a  change  of 
ownership  since  the  suit  began,  or  which  makes  it  improper 
to  award  a  return,  or  full  value  as  damages  for  a  failure  to 
make  return. ^  And  where  a  return  has  been  awarded,  and 
the  suit  is  on  the  bond,  the  defendants  may  show  any  fact  not 
settled  in  the  replevin  suit  in  mitigation  of  damages;  but  as 
against  a  trespasser,  the  defendant  is  entitled  to  a  return  of 
the  goods,  or  their  full  value,  notwithstanding  his  title  may 
have  terminated  before  trial.  So,  when  a  pawnee  of  property 
is  liable  to  the  owner  for  goods,  he  maj'  recover  the  full  value 
as  damages  against  a  strano:er  who  takes  them.* 

§  590.  Damages  against  officers  for  wrongful  seizure.  Ke- 
plevin  against  sheriffs  and  other  ministerial  officers  for  the 
wrongful  seizure  of  goods  is  of  frequent  occurrence,  and  the 
question  of  damages  to  be  awarded  against  officers  in  such  cases, 
or  in  their  favor,  when  they  are  entitled  to  the  return  of  the 
goods,  forms  an  important  part  of  the  chapter  on  damages.    The 

'  Seaman  t).  Luce,  23  Barb.  240;  Rhoads  e.  Woods,  41  Barb.  4'fl;  Inger- 
!--oll  r.  Van  Bokkelin,  7  Cow.  681,  n.  a;  Broadwell  v.  Paradice,  81  111.  474. 

2  Cole  c.  Couolly,  16  Ala.  271. 

3  Leonard  v.  Whitney,  109  Mass.  206. 
*  Lyle  v.  Barker,  5  Binn.  459, 


324  DAMAGES. 

law  is  well  settled,  that  glieriffs  and  other  ministerial  officers 
are  liable  in  damages  for  the  wrongful  seizure  of  goods  under 
process.  The  form  of  the  action,  however,  may  be  trespass, 
trover,  or  replevin,  at  the  election  of  the  party  injured.  Thus, 
if  the  sheriff,  with  an  execution  against  A.,  seize  the  goods  of 
B.,  B.  may  sustain  an  action  against  the  sheriff  for  the  goods^ 
or  their  value;  and  if  the  goods  are  sold,  or  are  not  returned, 
he  may  recover  the  value.  The  value,  and  not  the  amount  for 
which  they  were  sold,  is  the  measure  of  dam  ages.  ^  Though 
when  the  sheriff  seize  and  sell  goods,  and  the  plaintiff  is  an 
assignee,  who  must  have  sold  them  had  they  come  to  his  pos- 
session, the  jury  may  be  induced  to  find  the  sum  for  which  the 
sheriff  sold  them. 2 

§591.  The  same.  Against  oflaeer  acting  in  good  faith.  As 
against  a  sheriff  acting  in  good  faith  in  the  discharge  of  his 
official  duties,  exemplary  damages  are  not  allowed.  Even 
though  he  should  seize  and  sell  the  goods  of  the  wrong  per- 
son, the  value  of  the  interest  of  the  party  in  the  property  (not 
inchiding  loss  of  trade  or  character,)  with  interest,  and  reason- 
able compensation  for  any  depreciation  in  the  value,  or  cost 
of  replacing  it,  is  the  proper  measure  of  damages.  ^  In  Saffell 
V.  Wash,  4  B.  Mon.  (Ky.)  93,  is  was  said  that  the  sheriff  was 
not  liable  for  costs  when  he  levied  on  exempt  property.  That 
a  defendant  in  execution  should  not  be  allowed  to  resort  to  this 
interdicted  remedy  (replevin,)  even  for  his  exempt  property, 
except  at  the  certainty  of  paying  all  the  costs.  But  this  is 
contrary  to  the  entire  current  of  the  law  in  other  States,  and 
the  principle  would,  if  allowed  to  become  established,  turn 
loose  upon  society  a  set  of  licensed  trespassers.'* 

§592.  The  same.  Officer  acting  with  malice.  "Wheii.h-w- 
ever,  the  sheriff  has  acted  with  malice  or  fraud,  O'  with  desiga 

'  Pozzoni  V.  Henderson,  2  E.  D.  Smith,  146;  King  v.  Orser,  4  Duer.  (N^. 
T.)  431;  Livor  v.  Orser,  5  Duer.  501;  Wliitaker  v.  Wheeler,  44  ill.  441; 
Russell  c.  Smith,  14  Kan.  374. 

■■'  Whitehouse  v.  Atkinson,  3  Car.  &  P.  (14  E.  C.  L.)  844. 

3  Beveridcje  v.  Welch,  7  Wis.  45 ;  Barney  v.  Douglass,  22  Wis.  4M ;  Qrares 
V.  Sittig,  5  Wis.  219;  Morris  v.  Baker,  5  Wis.  389;  Mcwhkc  v.  "fi^TO.  Doren,  16 
Wis.  a20;  Noxon  v.  Hill,  2  A.llen,  215. 

*  See  poHt,  %  592. 


AGAINST   OFFICEKS   FOE    WEONGFUL   SEIZURE.  325 

to  annoj  or  oppress,  the  process  will  not  protect  hira  more  than 
if  lie  were  a  private  person. i  But  malice  on  the  part  of  the 
plaintiif  whose  process  the  sheriff  is  executing  cannot  Le  given 
in  evidence  against  the  sheriff. 2  So,  when  the  sheriff  levies 
an  attachment  on  goods  not  the  property  of  the  defendants, ' 
he  acts  at  his  peril,  and  is  answerable,  if  he  makei  a  mistJike;* 
and  in  such  case  it  is  no  ground  for  new  trial  that  the  jury  6x 
the  damages  at  a  greater  or  less  sum  than  any  of  the  witnesses 
fix  them. 5  If  the  sheriff  make  an  excessive  levy,  after  satis- 
faction of  the  debt  by  sale  of  part  of  the  goods,  and  a  return 
of  part  only  of  the  unsold  goods,  the  value  of  the  goods  not 
returned,  and  damages  for  their  detention,  and  for  any  injury 
they  may  have  received,  is  proper.® 

§  593.  The  same.  Where  the  suit  is  by  the  general  owner. 
"Where  the  goods  were  replevied  from  an  officer,  who  held 
them  on  several  attachments,  by  a  party  having  no  right  to 
them,  the  officer  was  entitled  to  the  full  value  and  damages 
(interest)  for  the  detention,  Nor  should  any  deduction  be 
made  for  attachments  which  were  levied  after  the  replevin.' 
This  rule  grows  out  of  the  fact  that  the  sheriff  making  a  levy 
is  regarded  as  responsible  to  the  defendant  in  execution  for 
any  surplus  there  may  be  after  satisfying  the  execution. 
Where,  therefore,  the  defendant  in  the  execution  replevies  the 
goods,  he  is  regarded  as  the  general  owner,  and  as  against  him 
the  sheriff  is  not  responsible  to  any  other  person  for  any  sur- 
plus after  satisfying  the  execution.  The  measure  of  damages, 
therefore,  in  such  cases,  is  the  amount  of  the  execution,  in 
case  it  is  less  than  the  value  of  the  property,  or  the  value  of 
the  property  in  case  the  execution  is  greater,  ^  as  the  damages 

t 

'  Nightingale  v.  Scannell,  18  Cal.  315;  Noxon  v.  Hill,  3  Allen,  215;  Mc- 
Daniel  v.  Fox,  77  111.  345. 
=  Nightingale  v.  Scannell,  18  Cal.  315. 
»  Milburn  v.  Beach,  14  Mo.  105. 

*  Ayer  v.  Bartlett,  9  Pick.  156 ;  Joyal  v.  Barney,  20  Vt.  155. 

'  See  note  to  Ayer  v.  Bartlett,  9  Pick.  156,  citing  many  cases. 

«  Waterbury  v.  Westervelt,  5  Seld.  (N.  Y.)  598. 

'  Farnham  v.  Moor,  21  Me.  508;  Lyle  v.  Barker,  5  Binn.  459. 

*  Jennings  v.  Johnson,  17  Ohio,  154;  Sutclifie  v.  Dohrman,  18  Ohio,  186; 
Battis  V.  Hamlin,  22  Wis.  669.  See  Coe  v.  Peacock,  14  Ohio  St.  187;  Nia- 
gara Elev.  Co.  V.  McNamara,  2  Hun.  416;  S.  C.  50  N.  Y.  Ct.  Appeals,  653. 


326  DAMAGES. 

should  not  exceed  tlie  value  of  the  property,  possibly  with 
interest  added. 

§  594.  The  same.  Where  the  suit  is  by  one  without  right. 
But  where  a  party  not  the  defendant  in  execution  replevies 
the  property,  and  upon  trial  a  return  to  the  sheriff  is  awarded, 
in  such  case  the  sheriff  is  regarded  as  responsible  to  the  gen- 
eral owner  for  the  surplus,  and  the  measure  of  damages  is  the 
full  value  of  the  property  and  interest,  without  regard  to  the 
amount  of  the  execution.  ^ 

§  595.  Damages  against  oflacer  for  losing  bond.  Where 
the  officer  has  lost  the  bond,  the  defendant  for  whose  benefit 
the  bond  was  given  may  have  his  action  the  same  as  though 
no  bond  had  been  taken,  and  may  recover  the  amount  for 
which  the  securities  in  the  bond  would  have  been  liable. ^  The 
principle  governing  in  such  case  is  that  the  party  is  entitled 
to  be  placed  in  as  good  a  position  as  if  the  sheriff  had  done 
his  duty,  and  the  damages  in  sucli  case  are  measured,  not  by 
the  amount  of  the  value  of  the  goods  or  the  defendant's  inter- 
est in  them,  but  the  amount  which  could  have  been  recovered 
if  the  breach  of  duty  had  not  happened.-' 

§  596.  The  same.  For  other  failure  in  his  duty.  If  the 
sheriff  fail  of  his  duty,  whereby  a  party  is  injured,  he  is 
usually  responsible  in  damages.  If  on  recovering  a  writ  of 
replevin  the  officer  fail  or  neglect  to  serve  it,  or  if  in  attempt- 
m<y  to  serve  it  he  is  put  off  with  vague  information  in  reply 
to  casual  inquiries,  he  is  responsible  to  the  party  for  such 
damaoes  as  he  may  have  sustained  by  such  misconduct ;4  but 
the  sheriff  may  negative  the  possibility  of  any  advantage  to 
:'ie  creditor  from  the  performance  of  his  dut}',  and  the  cred- 

'  First  Nat.  Bank  v.  Crowley,  24  Mich.  499;  Farnham  v.  Mooi.  21  Me. 
508;  Bucli  v.  Remsen,  34  N.  Y.  383;  Dilwortli  v.  McKelvy  30  Mo.  150; 
Lono-  V.  Cockrcll,  55  Mo.  93 ;  Fallon  v.  Mannincf,  35  Mo.  275.  See  Battis  *. 
Hamlin,  22  Wis.  CG9;  Lyle  v.  Barker,  5  Binn.  458. 

2  Perreau  v.  Bevan,  5  B.  &  C.  284. 

*  Aireton  e.  Davis,  9  Bing.  740.  In  an  action  for  not  arresting  en  mesne 
process,  or  permitting  a  debtor  to  escai)e,  a  plea  by  tlio  officer  negutiving 
any  damage  is  a  good  plea.  WiUiuTus  v.  Mostyn,  4  Mees.  &  W.  145,  over- 
ruling  Barker  v.  Green,  2  Bing.  317. 

*  Hiuman  v.  Borden,  10  WenJ.  307. 


BETWEEN   JOINT    OWNERS.  327 

itor  will  not  be  entitled  to  damages. ^  Thus  when  the  plaintiff 
delivered  to  the  sheriff  a  writ  directing  him  to  take  certain 
goods  of  the  party  therein  named  as  defendant  therein;  to  a 
suit  for  false  return  for  not  levying,  the  sheriff  was  permitted 
to  show  that  the  goods  were  not  the  goods  of  the  party  against 
whom  the  writ  issued.^ 

§  597.  In  suits  between  different  oflacers.  Suits  are  some- 
times brought  by  one  officer  against  another  to  test  the  relative 
priority  of  the  different  processes  held  by  them.  In  such  cases 
the  rule,  as  laid  down  in  a  case  in  Vermont,  is,  that  damages 
beyond  the  actual  value  of  the  property  should  not  be  given. ^ 

§  598.  Damages  b  tween  joint  owners.  Replevin,  as  we 
have  seen,  cannot  be  sustained  by  one  joint  owner  ao-ainst  his 
co-tenant;  but  such  actions  are  sometimes  brought  through 
mistake  or  by  design,  and  the  question  arises,  what  damage 
shall  be  awarded  against  the  plaintiff,  who,  though  he  may  be 
a  joint  owner  in  the  property,  and  equally  entitled  to  posses- 
sion with  the  defendant,  must  fail  in  his  action.  As  a  general 
rule  the  defendant  who  recovers  because  of  the  joint  tenancy 
is  entitled  to  be  restored  to  the  same  position  he  was  before 
the  taking  upon  the  writ,  and  is,  therefore,  entitled  to  judg- 
raent  for  a  return,  otherwise  the  plaintiff  would  gain  all  the 
advantage  of  a  victory  where  the  law  compels  a  defeat.  Er." 
when  in  such  case  the  court  comes  to  determine  the  questiori. 
of  dam.age,  the  defendant  is  not  entitled  to  recover  more  than 
the  value  of  his  interest  in  the  goods.* 

§599.  The  jsamo.  Where  the  plaintiff's  claim  for  delivery 
under  his  writ  is  based  upon  the  assumption  that  he  is  entitled 
to  possession  of,  and  he  obtains  delivery  of,  the  whole,  lie 
must,  upon  failure,  return  the  whole.  Where  the  action  was 
brought  by  a  stranger  against  a  bailee  of  one  joint  owner,  to 

'  Mayne's  Law  of  Damages,  this  title,  where  this  question  is  fully  ivad 
ably  discussed. 

*  Stimson  v.  Farnham,  1  Moaks,  (Eng.)  60. 
«  Goodman  v.  Church,  20  Vt.  187. 

*  Bartlett  v.  Kidder,  14  Gray,  ^Mass.)  449;  Witham  «.  Witham,  57  Me. 
448;  Spoor  v.  Holland,  8  Wend.  445;  Jones  v.  Lowell,  35  Me.  5^8;  Inger- 
soll  V.  Van  Bokkelin,  7  Cow.  670;  Mason  v.  Sumner,  33  Md.  813;  SuicIifFe 
«.  Dohrman,  18  Ohio,  185.    See,  also,  Reynolds  v.  McCormick,  63  111.  413. 


328  DAMAGES. 

whom  the  defendant  is  answerable  for  the  return  of  the  goods 
or  their  value,  the  damages  must  be  the  full  value,  and  not 
the  value  of  the  interest  of  the  bailor.  ^ 

§  600.  Effect  of  the  death  or  destruction  of  the  property. 
Questions  frequently  arise  as  to  what  effect  the  death,  or 
destruction  of  the  property  pending  the  suit,  will  have  on  the 
rights  of  the  parties;  upon  this  question,  the  authorities  with 
a  few  exceptions,  can  easily  be  harmonized.  It  was  said  in  a 
!N^ew  York  case,  that  when  the  property  sued  for  is  a  living 
animal,  and  it  dies,  it  is  a  good  plea  to  say  that  it  is  dead.^ 
This  ruling  waL  based  upon  the  idea  that  the  return  had 
become  impossible,  by  act  of  God;^  but  this  ruling  has  been 
questioned  more  than  once.  To  permit  a  defendant  who 
wrongfully  takes  possession,  to  claim  that  he  holds  it  at  tho 
risk  of  the  real  owner  and  not  at  his  own,  and  claim  immu- 
nity for  accident,  would  be  unjust,  in  the  extreme.  The 
wrongful  taker  of  property,  when  called  upon  to  surrender  it 
to  the  rightful  owner  or  pay  the  value,  cannot  defend  himself 
from  judgment  by  showing  his  inability  to  deliver  through 
death  or  otherwise.'*  If  the  recovery  of  the  specific  thing 
was  the  sole  object  of  the  action,  of  course  upon  its  death  or 
destruction  the  action  would  terminate;  but  the  object  is  to 
recover  the  thing  only  in  case  it  can  be  had,  and  its  alternate 
value  in  case  it  cannot  be  delivered  in  specie.  The  result  is, 
that  the  death  or  destruction  of  the  thing  sued  for,  does  not 
defeat  the  action  unless  it  be  under  circumstances  which  excuse 
the  party  from  liability  for  the  value. ^ 

§  601.  The  same.  If  in  the  action  of  replevin  or  detinue, 
the  judgment  for  the  delivery  of  the  property  or  its  alternate 
value,  is  to  be  prevented  b}'^  its  death  or  destruction  pending 
the  suit,  it  is  obvious  that  that  form  of  action  is  inadequate 
to  redress  the  wrong  or  enforce  the  right  to  its  full  extent. 

'  Russell  V.  Allen,  3  Kern.  (N.  Y.)  178. 

*  Carpenter  v.  Stevens,  12  Wend.  589. 

«  See  Mclvin  v.  Winslow,  1  Fair.  (Me.)  397. 

*  Caldwell  v.  Fenwick,  2  Dana,  333;  Haile  v.  Hill,  13  Mo.  612;  Gibbs  v. 
Barllett,  2  W.  «&  S.  (Pa.)  34;  Austin's  Ex'rs  v.  Jones,  1  Gilmer,  (1  Va.)  341; 
iJcott  V.  Hughes,  9  B.  Mon.  104. 

*  Carrel  v.  Early,  4  Bibb.  (Ky.)  270. 


EFFECT   OF    DESTRUCTION    OF   rRGPERTV.  329 

The  plaintiff  must  yield  his  desire  to  obtain  the  specific  prop- 
erty, or  he  must  incur  the  peril  of  losing  not  only  the  prop- 
erty, but  all  claim  for  compensation  in  case  it  die  in  the  handa 
of  the  wrongful  taker.  ^  Therefore,  in  such  cases,  when  the 
property  has  been  destroyed  and  cannot  be  delivered  or  re- 
turned, the  fact  of  its  destruction  does  not  furnish  any  excuz-o 
for  the  non-payment  of  the  value.  The  New  York  CcU^Co 
referred  to  were  based  upon  the  hypothesis  that  the  pa',  ty 
came  rightfully  into  the  possession,  and  was  liable  only  for 
ordinary  care.  All  the  analogies  in  cases  where  the  taking 
was  wrongful  are  different. ^ 

§  602.  The  same.  Death  of  slaves  pending  suit  does  not 
aflfect  the  right  to  judgment  for  valu*.  The  death  of  slaves 
pending  the  action  for  them  has  often  been  held  not  to  defeat 
the  plaintiff's  right  to  a  judgment  for  them  or  their  value.^ 
In  Caty'el  v.  Early^  4  Bibb.  (Ky.)  270,  the  proposition  was 
that  the  slaves  having  died  without  fraud  of  defendant  after 
suit  begun,  defeated  plaintiff's  right  to  their  value.  C.  J. 
Boyle  said,  "this  proposition  cannot  be  maintained.  Were 
the  recovery  of  the  specified  thing  the  absolute  and  sole  object 
of  the  action  of  detinue,  the  destruction  of  the  thing  would 
necessarily  defeat  the  action;  but  as  the  object  is  to  recover 
the  thing  only  upon  condition  it  can  be  had,  and  if  not  then 
its  value,  it  follows  that  the  action  cannot  be  defeated  by  the 
destruction  of  the  thing  unless  under  circumstances  which 
would  excuse  the  defendant  from  responsibility.  He  who 
wrongfully  detains  the  property  of  another  does  so  at  his 
peril,  and  will  be  responsible  to  the  owner,*  though  the  prop- 

'  See  Suydam  t.  Jenkins,  3  Sandf.  644;  Middleton  v.  Bryan,  3  Maul.  & 
S.  158. 

»  Garrett  v.  Wood,  8  Kan.  231 ;  Berthold  u.  Fox,  13  Minn.  501. 

8  Wiiite  V.  Ross,  5  Stew.  &  Porter,  (Ala.)  133;  Lay  o.  Lawson,  23  Ala.  377; 
Bettis  t.  Taylor.  8  Por.  (Ala.)  564;  Bell  d.  Pharr.  7  Ala.  807;  Johnson  «. 
Marshall,  34  Ala.  523;  Carrel  v.  Early,  4  Bibb.  270.  Action  not  proper  if 
slave  died  before  suit  began.  Caldwell  »  Feawick,  3  Dana,  (Ky.)  333; 
Barksdale  'c.  Appleberry,  33  Mo.  390.  Value  of  use  to  the  time  of  death. 
Haile«.  Hill,  13  Mo.  612;  Austin  n.  Jones,  1  Va.  341;  Bethea  v.  McLen- 
non,  1  Ired.  (K  C)  523;  Rose  v.  Pearson,  41  Ala.  689. 

4  Barksdale  ®.  Appleberry,  23  Mo.  393;  Rose  v.  Pearson,  41  Ala.  692; 
Feagin  d.  Pearson,  42  Ala.  335. 


330  DAMAGES. 

ertj  sliould  be  destroyed  by  accident,  or  taken  from  liim  by 
malice." 

§  603  The  same.  Emancipation.  It  has  also  been  held 
that  where  slaves  had  become  emancipated  before  the  trial, 
that  fact  furnished  no  reason  why  the  plaintiff  should  not 
have  judgment  for  their  value,  (suit  begun  in  March,  1852, 
tried  in  1869.)^ 

§  604.  Judgment  when  the  property  is  lost  or  destroyed. 
When  it  appears  that  the  property  was  hopelessly  lost  or  de- 
stroyed, so  that  judgment  for  its  return  would  be  of  no  avail,  a 
failure  to  render  judgment  for  the  return  was  regarded  as  a  tech- 
nical error,  and  judgment  for  the  value  was  not  disturbed. ^ 

§  605.  Damages  allowed  only  where  the  defendant  is  enti- 
tled to  a  return.  The  defendant  is  never  entitled  to  damages 
unless  he  shows  himself  entitled  to  the  property.  Damages 
are  in  fact  only  an  incident  to  judgment  for  a  return,  which 
should  not  be  given  unless  the  defendant  plead  and  show  some 
rio-ht  or  title  in  himself  ^  Damao-es  to  a  defendant  are  to  com- 
pensate  him  for  the  loss  he  has  sustained  by  being  deprived  of 
his  property,  and  their  award  involves  a  prior  finding  that  the 
property  belongs  to  the  defendant.  It  would  be  a  violation  of 
all  the  principles  of  the  law  to  give  damages  to  one  who  liad 
no  right  to  the  property,  and  could  not  show  himself  entitled 
to  a  return.^ 

§  G06.  Option  of  the  defendant  to  pay  value  or  return  tha 
goods ;  where  allowed.  In  some  of  the  States  it  is  at  tlve 
option  of  the  defendant  in  replevin  to  return  the  goods  or  pay 
the  value  as  assessed  by  the  jury;^  but  the  contrary  is  the 
more  common  doctrine,  but  this  is  a  purely  local  regulation. « 

§  607.  Damages  to  compel  return.  It  not  unfrequ^aitly  hap. 
pens  that  the  defendant  makes  some  disposition  of  the  property 
to  defeat  the  writ  of  return,  and  contents  himself  with  paying 
the  alternate  judgment  for  the  value.     In  case  the  goods  h;;.ve 

>  Wilkerson  v.  McDougal,  48  Ala.  518.     See  McElvaia  v.  Mudd,  4-1  Ala.  43. 
«  Biowa  V.  Johnson,  45  Cal.  76;  Wilkerson  v.  McDougal,  48  Ala.  518. 
«  Whitwell  V.  Wells,  24  Pick.  25. 

*  Neis  V.  Gillen,  27  Ark.  184.  V 

*  Allen  i).  Fox,  51  N.Y.5G9.  * 

*  Mayberry  v.  ClilTe,  7  Cold.  (Tenn.)  121. 


WUEN    AND   HOW    ASSESSED.  331 

an  intrinsic  value,  above  tlie  market  value,  or  a  value  to  the 
parties,  or  one  of  them,  greatei  than  the  market  value,  the 
disposition  to  keep  them  and  pay  the  value  mav  lead  the  party 
to  adopt  such  a  course  as  this;  but  where  the  goods  have  a 
peculiar  value  whicli  makes  their  return  important  to  the 
defendant,  the  jury  in  a  proper  case  will  be  warranted  in  fixing 
the  value  at  "uch  a  sum  as  will  be  likely  to  compel  their 
return.  1  So  where  the  plaintiff  sued  for  specified  chatties, 
which  had  a  peculiar  value  to  him,  the  jury,  with  the  view  of 
inducing  a  surrender  of  the  specific  goods,  placed  a  value  oi» 
them  higher  than  would  otherwise  have  been  warranted  by  the 
evidence,  the  verdict  was  allowed  to  stand,^  This  rule,  highly 
advantageous  where  it  appears  that  the  party  to  whom  such 
damages  are  awarded  is  clearly  in  the  right,  is  liable  to  abuse, 
and  such  damages  should  never  be  allowed  in  any  case  unless 
it  appears  that  the  party  has  the  property  and  can  deliver,  and 
that  the  increase  in  damages  may  result  in  producing  a  deliv- 
ery, which  ought  to  be  made,  and  will  otherwise  be  refused. 

§  608.  When  and  how  assessed.  The  damages  should  be 
assessed  in  the  replevin  suit.  They  are  but  an  incident  to  the 
proceeding  in  replevin,  and  to  prevent  a  multiplicity  of  suits, 
questions  touching  the  damage  should  be  settled  in  the  replevin 
suit.3  In  Missouri,  when  the  judgment  is  against  the  plain- 
tiff, it  is  against  him  and  his  securities  that  they  return  the 
property  or  pay  the  value,  with  damages  and  costs.  The  jury, 
therefore,  which  tries  this  issue  touching  the  replevin  should 
pass  upon  the  issues  as  to  damages.  They  should  find  the 
value  which  the  plaintiff  and  his  security  must  pay  in  case  they 
fail  to  return  the  property,  and  should  assess  the  damages. 
There  is  no  warrant  of  law  to  call  a  jury  to  try  part  of  the 
case  and  another  part  of  the  case.*     This  rule  is,  however,  by 

•  Mayberry  v.  Cliffe,  7  Cold.  (Tean.)  120;  Goodman  v.  Floyd,  2  Humph. 
(Tenn.)  60. 

^  Cochran  v.  Winburn,  13  Tex.  143.  But  see,  in  this  connection,  Hoeser 
V.  Kraeka,  39  Tex.  450. 

3  Hohenthal  v.  Watson,  23  Mo.  3(K);  White  v.  Van  Houten,  51  Mo.  578; 
Bower  v.  Tallman,  5  W.  &  S.  (Pa.)  55G;  Redman  v.  Hendricks,  1  Sandf.  (N. 
Y.)  32;  Gh\nn  v.  Younglove,  27  Barb.  480. 

*  Hohenthal  v.  Watson,  28  Mo.  360. 


333  DAMAGES. 

no  means  universal.  In  Iowa,  the  damages  miglit  be  recov- 
ered in  the  replevin  suit  or  in  a  separate  action  on  the  bond.  ^ 
In  Maine,  a  similar  rule  obtained. ^ 

§  609.  Generally  dependant  on  local  statute.  This  question 
however  depends  on  the  statutes  of  the  different  States.  No 
general  rule  can  be  stated.  Bj  the  common  law,  upon  an 
omission  to  have  damages  assessed  in  the  replevin  suit,  the 
defendant  was  entitled  to  have  a  writ  of  inquiry, ^  and  unless 
the  condition  of  the  bond  or  some  statutory  prohibition  exists, 
such  course  would  be  permitted  now.  AYhen  the  condition  of 
the  bond  is  to  pay  such  damages  as  shall  be  adjudged,  the  only 
safe  course  is  to  have  the  damages  assessed  in  the  replevin 
suit.*  In  Indiana,  the  plaintiff  in  a  suit  on  the  bond  is  per- 
mitted to  recover  even  though  damages  were  not  assessed  in 
the  replevin. s  In  Illinois,  the  securities  are  not  parties  to  the 
replevin  suit,  and  evidence  of  the  assessment  of  damages  in 
the  replevin  suit  is  not  admissible  against  them  in  suit  on 
the  bond. 8 

§  610.  Value  and  damages  should  be  separately  assessed. 
The  vahie  of  the  property  and  the  damages  for  detention,  etc., 
should  be  separately  assessed,  and  in  no  case  should  they  be 
amalo-amated.'  The  force  of  this  will  be  apparent  when  it  is 
considered  that  the  claims  for  value  and  for  damages  are  based 
upon  entirely  different  grounds.  Value  is  only  allowed  when 
the  property  cannot  be  had;  damages  are  to  compensate  the 
party  for  being  deprived  of  his  property;  but  by  agreement  of 
the  parties  the  value  and  damages  may  be  assessed  in  one  sum.^ 

§  6 1 1.  Recovery  cannot  be  for  a  greater  sum  than  is  claimed. 
The  damages  stated  in  the  writ  or  in  the  narr  is  not  fixed  with 

>  Hall  V.  Smith,  10  Iowa,  45. 

*  In  Washington  Ice  Co.  d.  Webster,  62  Me.  363,  it  was  said  that  in  case 
of  a  non-suit,  without  assessment  of  damages,  that  they  might  be  assessed 
in  suit  on  the  bond. 

3  Humfrey  v.  Misdale,  Comb.  11;  Herbert  v.  Waters,  1  Salk.  205. 

*  Pettygrove  v.  Hoyt,  11  Me.  66;  Sopris  v.  Lilley,  2  Col.  498. 

»  Whitney  v.  Lehmar,  26  lud.  506;  Hall  v.  Smith,  10  Iowa,  47. 
«  Shepard  v.  Bulterfield,  41  111.  78.     See  this  case. 
■•  Bayers  v.  Holmes,  2  Co'.dw.  (Tenn.)259. 
«  M'Cabe  v.  Morehead,  1  W.  &  S.  (Pa.)  515. 


PROPERTY   SEVERED   FROM    REAJ.   ESTATE.  333 

any  very  nice  attention  to  the  actual  value.  The  pleader  will 
usually  take  good  care  to  fix  it  at  the  outside  value,  on  the  suppo- 
sition that  the  jury  would  not  give  him  any  greater  sum  than  the 
value  as  fixed  by  himself.^  In  California  the  right  to  a  return 
must  be  determined  in  the  first  instance  in  the  replevin  suit, 
but  if  that  is  dismissed  without  trial  the  parties  are  left  to  the 
remedy  on  the  bond.2  The  rule  in  this  action,  as  in  trover, 
does  not  confine  the  jury  to  the  damages  which  were  sustained 
prior  to  the  date  of  the  writ,  but  the  injury  may  be  continued  up 
to  tlie  date  of  the  trial,^  the  same  as  interest  is  computed  upon 
a  promissory  note  up  to  the  date  of  the  verdict  or  judgment, 

§  612.  Damages  for  property  severed  from  real  estate. 
When  the  owner  of  real  estate  sues  in  replevin  for  property 
which  has  been  severed  therefrom  he  can  recover  only  the 
value  of  the  property  after  the  severance;  not  its  value  as 
forming  part  of  the  real  estate.  The  reason  for  this  rule  will 
l)e  apparent  when  it  is  considered  that  the  plaintiff  sues  for  his 
property  as  his  chattel,  not  as  his  realty.  He  had  his  election 
to  sue  in  trespass,  in  which  form  he  might  have  recovered  the 
damage  to  the  real  estate;  but  having  elected  to  treat  it  as 
chattel  property  he  can  only  recover  its  value  as  a  chattel. 
Thus,  when  a  fence  was  removed  from  a  farm,  and  the  owner 
replevied  it,  proof  that  it  was  worth  $200  as  a  fence,  but  the 
materials  when  removed  were  worth  only  $75,  the  plaintiff 
could  only  recover  the  value  of  the  materials.* 

§  613.  The  same.  "When  the  suit  was  for  rails,  and  before 
the  service  of  the  writ  the  defendant  built  part  of  them  into 
a  fence,  the  sheriff  could  not  take  the  fence,  and  the  plaintiff 
could  recover  the  value  of  the  rails,  not  the  value  of  the  fence.  ^ 
So  a  tenant  who  was  dispossessed  for  non-payment  of  rent,  and 
prevented  from  taking  a  chimney  which  he  had  the  right  to 
take,  which  could  not  be  removed  without  taking  down,  the 

'  Hoskins  v.  Robins,  3  Saund.  320,  n.  1 ;  Huggeford,  v.  Ford,  11  Pick.  223. 
The  plaialiff  cannot  recover  a  greater  sum  than  he  has  claimed  in  his 
declaration.     O'Neal  v.  Wade,  3  Ind.  410. 

*  Mills  V.  Gleason,  21  Cal.  274;  GinacatJ.  Atwood,  8  Cal.  446. 
»  Dailey  v.  Dismal  Swamp,  2  Ired.  (N.  C.)  223. 

*  Pennybecker  v.  McDougal,  48  Cal.  162. 
»  Bower  v.  Tallman,  5  W.  &  S.  (Pa.)  561. 


334  DAMAGES. 

value  of  tlie  material  unincumbered  bj  any  bligation  to 
remove  it  was  proper  measure  of  damages.  ^ 

§  614.  The  same.  Coal  dug  or  timber  cut.  Another  class 
of  cases  arises  where  the  property  has,  by  its  severance  from 
the  realty,  been  increased  instead  of  diminished  in  value;  of 
which  coal  dug  from  the  mine  of  another,  or  timber  cut  from 
his  land,  furnish  common  instances.  The  severance  does  not 
change  the  title  to  the  property.  The  owner  may  sustain 
replevin,  but  the  question  of  damages  to  be  given  him  in  case 
lie  does  not  recover  the  property  in  specie  is  one  of  more  diffi- 
culty. In  England  when  the  action  was  trespass  for  taking 
coal,  the  value  was  estimated  at  the  value  when  severed  from 
the  realty,  and  not  when  in  the  mine.^  In  Illinois,  after  a  full 
consideration  of  the  authorities,  the  court  followed  'substantially 
the  rule  in  Martin  v.  Portei\  5  Mees.  &  AV.  353,  aul  gave  the 
value  at  the  mouth  of  the  pit,  less  the  cost  of  carrying  it  there, 
allowino:  nothinor  for  the  digoring.3 

O  ~  OCT  O 

§  615.  The  ciroumstances  under  which  the  severance  was 
made,  and  the  form  of  the  action,  material  to  be  considered. 

The  circumstances  under  which  the  property  was  taken  con- 
stitute a  material  element  in  determining  damages  in  such 
case.  In  a  case  of  trover  the  jury  were  told  that  if  tliere  was 
fraud  or  neo-ligence  on  the  part  of  the  defendant  they  might 
give  the  full  value  of  the  coal  after  the  removal;  but  if  the  de- 
fendant acted  under  the  honest  belief  that  he  had  a  right  to  dig 
as  he  did,  value  of  the  coal  in  the  mine  was  the  proper  damages, 
as  an  award  of  the  value  of  the  coal  before  removal  will  fully 
compensate  the  plaintiff  for  all  the  damage  he  has  sustained.-* 
This  case  of  Forsyth  v.  Wells  was  considered  in  III.  c&  St.  L. 
R.  R.  and  Coal  Co.  v.  Ogle,  82  111.  627,  but  the  court  fol- 
lowed Morgan  v.  Powell,  3  Adolp.  &  Ellis,  278,  (43  Eng. 
Com.  Law,  li.  734,)  which  was  trespass  for  digging  plaintiff's 

1  Moore  v.  Wood,  12  Abb.  Pr.  R.  (N.  Y.)  393. 

2  Martin  ».  Porter,  5  Mees.  «fe  W.  353;  Wild  v.  Holt,  9  Mees.  &  W.  672; 
Morgan  ».  Powell,  3  Adolp.  &  E.  (43  E.  C.  L.)  278. 

3  111.  &  St.  L.  II.  Fv.  and  Coal  Co.  v.  O.^le,  82  111.  627;  Robertson  d.  Jones, 
71  111.  40');  McLean  Co.  Coal  Co.  v.  Long,  81  111.  359. 

"  Forsyth  v.  Wells,  41  Pa.  St.  291;  citing  Wood  v.  Morewood,  (43  E.  C. 
L.)  3  Adolp.  &  E.  440. 


TREES   CUT   BY   MISTAKE.  660 

coal,  where  the  court  held  that  the  pLiintilF  mi<^lit  recover  the 
vahie  of  the  coal  when  dug,  allowing  tlie  defendant  nothing 
for  the  digging,  but  if  the  defendant  had  moved  the  coal  to 
the  mouth  of  tiie  pit  he  should  be  paid  for  his  labor  in  so 
doing.  But  in  that  case  Patterson',  J.,  said,  in  substance,  if 
the  plaintiff  had  brought  trover  or  detinue  for  the  coal  after  it 
was  brought  to  the  pit's  mouth  he  might  have  recoverc(^ 
the  value  which  it  then  had  without  deduction.  Bat  thij 
action  was  trespass  for  taking  and  detaching  the  mineral  from 
the  freehold,  and  the  value  must  be  regarded  as  attaching  at 
the  moment  the  trespass  was  committed.  If  the  defendant 
put  any  expense  on  the  coal  alter  the  first  trespass  it  could  not 
be  recovered  in  this  action.  It  would,  therefore,  seem  that 
when  the  form  of  the  action  is  replevin  or  trover,  and  not  tres- 
pass, the  rule  laid  down  in  Forsyth  v.  Wells,  41  Pa.  St.  291, 
would  be  proper,  rather  than  the  exceedingly  technical  rule 
laid  down  in  Morgan  v.  Powell,  supra.  In  trover  for  the 
conversion  of  logs  by  mistake,  the  court  held  the  measure  of 
damages  should  be  a  sum  sufhcient  to  compensate  the  party 
for  the  injury  he  had  sustained, ^  and,  except  in  cases  where 
punitive  damages  are  proper,  or  where  nominal  damages  are 
Bufhcient,  this  rule  is  the  only  just  theory.^  In  the  case  of 
Winchester  v.  Craig,  above  referred  to,  the  court  most  aptl}'' 
illustrates  the  law  in  this  case,  by  supposing  a  party  cut  trees 
by  mistake  and  ships  them  a  short  distance;  and  another, 
nnder  similar  circumstances,  cut  timber  and  ships  it  to  Europe. 
In  separate  actions  against  each  the  plaintiff  claims  the  value 
at  the  place  where  the  timber  was  sold.  It  is  very  evident 
that  though  the  value  of  the  standing  timber  was  the  same  in 
each  case,  and  the  actual  injury  to  the  plaintiff  the  same  in 
both  cases,  the  verdict,  if  this  recovery  was  allowed,  would 
be  very  different,  and  he  who  had  spent  the  most  time  and 
money  in  giving  the  timber  any  real  value  would  be  punished 
most,  under  no  pretense  of  compensating  the  plaintiff. 

§  616.       Trees  cut  upon  the  land  of  another  by  mistake. 
"When  trees  are  cut  on  the  land  of  another  by  mistake,  the 

>  AVincliester  v.  Craig,  33  Mich.  206;  Nortlirup  «.  McGill,  27  Mich.  238. 
»  Winchester  v.  Craig,  33  Mich.  206. 


336  DAMAGES. 

value  of  the  trees  cut  down  is  given  as  the  measure  of  dam- 
ages, as  the  severance  changes  the  property  from  real  to  per- 
sonal property,  but  in  no  way  changes  the  ownership.  The 
value  at  the  time  of  the  severance  is  regarded  as  a  just  com- 
pensation. ^  In  a  suit  for  cutting  timber,  the  form  of  the 
action  being  trespass  de  bonis  asportatis^  the  logs  being  hauled 
to  a  certain  landing;  but  the  court  allowed  only  the  value  at  the 
place  where  they  were  cut,  though  in  trover  tlie  value  at  the  place 
where  found  might  have  been  allowed. ^  But  there  are  other 
cases  where  the  court  allowed  the  value  less  the  value  of  the  labor 
of  cutting,  which  was  deducted. ^  When  the  taking  was  by  a 
willful  trespasser,  the  rule  is  different;  thus,  where  a  trespasser 
cut  wheat  on  another's  land,  he  cannot  deduct  for  the  labor  of 
cutting,  but  must  give  the  owner  the  value  of  the  wheat,  as 
though  he  had  harvested  it  himself.^  When  A.  employed  a 
builder  to  furnish  materials  and  build  a  house  on  his  lot,  and 
■was  to  pay  for  it  by  conveying  another  lot,  the  builder,  fearing 
loss,  sold  the  house  to  a  person,  who  moved  and  placed  a 
foundation  under  it  on  his  own  lot.  A.  sued  the  purchaser 
and  builder  in  replevin.  Held,  that  the  house  had  become 
real  estate,  and  that  the  plaintiff  was  entitled  to  the  value. ^ 

§  017.  The  general  rule  stated  applicable  to  various  change:" 
in  the  property.  The  rule  has  been  stated  with  much  force 
and  clearness  as  follows:  When  the  defendant's  conduct,  meas- 
nred  by  the  standard  of  ordinary  morality  and  care,  which  is 
the  standard  of  the  law,  is  not  chargeable  with  fraud,  violence, 
willful  negligence  or  wrong,  the  value  of  the  property  taken 
and  converted  is  the  measure  of  just  compensation.  If  the 
raw  material  has,  after  appropriation,  and  without  such  wrong, 
been  changed  by  manufacturer  into  a  new  species  of  property, 
as  grain  into  whisky,  grapes  into  wine,  furs  into  hats,  hides 
into  leather,  or  trees  into  lumber,  the  law  either  refuses  the 

'  Martin  v.  Porter,  5  Mees.  &  W.  353;  Morgan  v.  Powell,  3  Adolp.  &  E. 
(43  E.  C.  L.)  278 ;  Winchester  v.  Craig,  33  Mich.  206. 

»  Cushing  V.  Longfellow,  26  Me.  307. 

»  Hungerford  v.  Redford,  29  Wis.  345;  Young  v.  Lloyd.  65  Pa.  St.  204; 
Single  V.  Schneider,  24  Wis.  299;  Herdic  v.  Young.  55  Pa.  St  176. 

*  Bull  V.  Griswold.  19  111.  631. 

*  Reese  v.  Jared,  15  Ind.  (Harrison,)  142. 


GENERAL    PRINCIPLES.  S37 

action,  or  limits  the  recovery  to  the  value  of  the  original 
articles.!  But  when  the  defendant  has  been  guilty  of  any 
force  or  fraud  to  wrongfully  deprive  the  plaintiff,  the  rule,  as 
stated,  does  not  apply,  and  the  law  gives  the  owner  the  entire 
property,  without  deduction  for  the  increased  value  which  the 
trespasser's  labor  has  given  it.^  The  intention  of  the  law,  in 
all  these  cases,  is  to  do  justice  to  the  parties.  Where  a  tres- 
passer takes  the  timber  of  another,  and  cuts  it  into  wood,  and 
burns  it,  or  where  he  takes  cattle,  which  the  owner  prizes 
highly,  and  butchers  them,  the  law  cannot  restore  the  cattle 
or  the  wood;  it  cannot  fully  and  completely  protect,  or  com- 
pensate for  the  injury.  It  can,  however,  approximate  to  it; 
but  because  a  wrong  has  been  done  to  the  plaintiff,  it  will  not 
mend  the  matter  to  inflict  another  wrong  on  the  defendant. 
The  law  rather  aims  to  protect  the  plaintiff,  but  at  the  same 
time  to  inflict  no  unnecessary  injury  on  the  defendant.' 

§  618.  Vindictive  damages;  when  allowed.  In  cases  where 
tlie  taking  or  subsequent  detention  is  accompanied  by  any  act 
showing  malice  or  fraud,  or  that  it  was  done  for  the  purpose 
of  oppression,  or  in  willful  disregard  of  the  rights  of  the  other 
party,  the  law  abandons  the  rule  of  compensation,  and  allows 
exemplary  damages,  such  as  will  not  only  compensate  the  party 
injured,  but  such  other  and  additional  amount  as  will  serve  as 
a  lesson  to  him  in  the  future,  or  shall  punish  him  for  the  wrong 
committed.* 

§619.  The  general  principles.  The  rules  governing  cases 
of  vindictive  or  exemplary  damages  in  replevin  is  ably  dis- 
cussed in  the  case  of  Whitfield  v.  Whitfield,  40  Miss.  367.     The 

>  Silsbury  v.  McCoon,  6  Hill,  (N.  Y.)  425. 

*  Silsbury  v.  McCoon,  3  Comst.  381. 

^  Warren  v.  Cole,  15  Mich.  271,  citing  many  cases. 

<  Cable  V.  Dakin,  20  Wend.  172;  Brizsee  n.  Maybee,  31  Wend.  144;  Dor- 
sey  c.  Manlove,  14  Cal.  553;  Whitfield  v.  Whitfield,  40  Miss.  366;  Daven- 
portc.  Ledger,  80  111.  574;  Mitchell  v.  Burch,  36  Ind.  535;  Biscoe  v.  Mc- 
Elween,  43  Miss.  556;  Jamison  p.  Moon,  43  Miss.  598;  M'Cabe  v.  Morehead, 
1  W.  &  S.  (Pa.)  516 ;  Taylor  v.  Morgan,  3  Watts.  (Pa.)  334 ;  Landers  v.  Ware. 
1  Strob.  (S.  C.)  15.  For  a  statement  of  the  distinction  between  compen- 
sating and  vindictive  damages,  see  Hendrickson  v.  Kingsbury,  21  Iowa, 
379;  Graham  v.  Koder,  5Tex.  141;  Colec.  Tucker,  6  Tex.  266.  Timber  cut 
into  boards,  the  enhanced  value.  Baker  v.  Wheeler,  8  Wend.  506. 
22 


V 


OoO  DAMAGES. 

rule  there  laid  down  is,  that  where  the  original  taking  was 
wrongful,  or  where  the  original  taking  was  hona  fide^  but  the 
subsequent  detention,  sale  or  disposition  of  the  property,  after 
a  knowledge  of  the  plaintiff's  right,  was  in  willful  disregard 
of  such  right,  or  when  the  original  taking  and  subsequent  dis- 
position of  the  property  at  a  price  greater  than  its  market 
value  at  the  time  of  taking,  were  all  in  ignorance  of  the  plain- 
tiff's rights,  but  the  defendant,  after  knowledge,  seeks  to 
retain  the  difference,  as  a  speculation  resulting  from  his  orig- 
inal wrong;  or,  when  the  property  has  some  peculiar  value  to 
the  plaintiff,  and  is  willfully  withheld,  in  all  such  cases  it  is 
the  peculiar  province  of  the  jury  to  fix  such  damages  as  will 
be  consonant  with  right,  not  as  a  matter  of  law,  but  of  reme- 
dial justice,  resting  with  the  jury. ^ 

§  620.  The  same.  The  meaning  of  the  terms  "punitive," 
"  exemplary"  and  "vindictive."  This  rule  of  exemplary  dam- 
ages finds  illustration  in  many  cases,  the  general  principle 
being  the  same  in  all,  that  where  the  taking  was  accompanied 
by  any  evident  design  to  annoy,  harrass,  oppress  or  insult,  the 
jury  may  give  such  damages  as  will  fully  compensate  the 
injured  party  for  his  actual  losses,  and  in  addition  thereto  such 
sum,  as  from  all  the  circumstances  of  the  case,  seems  just. 

'  This  question  is  treated  at  length  in  Sedgwick  on  Meas.  of  Damage, 
Cth  Ed.,  p.  544.  See,  also,  Herdic  v.  Young,  55  Pa.  St.  176;  Dorsey  v.  Gas- 
saway,  2  H.  &  J.  (Md.)402;  Bruce  v.  Learned,  4  Mass.  614;  Carey  v.  Bright, 
58  Pa.  St.  70;  McBride  v.  McLaughlin.  5  "Watts.  (Pa.)  375;  8  B.  Hon.  36(i. 
See  Farwell  v.  Warren,  51  111.  467;  Walker  ti.  Smith,  1  Wash.  C.  C.  152. 
The  question  of  punitive  damages  is  exhaustively  discussed  in  Fay  v. 
Parker,  53  N.  H.  Rep.  343.  The  conclusion  reached  in  that  case  is,  that  in 
cases  when  the  action  is  for  a  tort,  punishable  by  the  criminal  law,  puni- 
tive damages  cannot  be  assessed,  as  the  defendant  is  liable  to  criminal 
punishment;  and  if  punitive  damages  were  permitted,  he  miglit  be  pun- 
ished  twice  for  the  same  otfense,  which  is  unconstitutional.  QucBre,  whether, 
in  any  civil  action,  the  plaintiff  can  recover  punitive  damages.  To  the 
same  effect,  see  Austin  v.  Wilson,  4  (Jush.  (Mass.)  273;  Tabor  v.  Hutson,  5 
Ind.  322;  Humphries  c.  Johnson,  20  Ind.  190.  Compare  Birchard  v.  Booth, 
4  Wis.  72;  Wilson  v.  Middleton,  2  Cal.54;  Cook  v.  Ellis,  6  Hill,  4G6;  Hoad- 
ley  V,  Watson,  45  Vt.  289;  M'Cabe  v.  Morehead,  1  W.  &  S.  513;  Scliofield 
V.  Ferrers,  46  Pa.  St.  439,  The  current  of  authority  justifies  the  assessuxent 
of  punitive  damages  in  cases  of  willful  wrong.  The  rule  is  liable  to 
great  abuse,  but  its  necessity  has  been  made  apparent 


GENERAL    PEINCIPLES.  339 

The  terms  punitive  damages  —  damages  to  'punish  —  exem- 
plary damages  —  damages  for  example,  or  to  teach  the  party 
a  lesson  for  the  future  —  or  vindictive  damages  —  are,  I  con- 
ceive, frequently  misconstrued.  The  law  does  not  award  any 
unjust  or  revengeful  damages,  but  the  terms  only  mean  that 
in  such  cases  compensation  for  the  actual  loss  of  property 
Avould  not  be  full  compensation  for  the  injury  actually  sus- 
tained, and,  therefore,  as  a  matter  of  justice,  the  law  permits 
further  compensation  sufficient  not  only  to  make  up  to  the 
party  for  all  the  injury  he  has  sustained,  but  to  prevent  the 
wrong-doer  from  deriving  any  profit  from  his  wrongful  act  at 
the  expense  of  the  other.^  The  terms  "punitive"  and  "vin- 
dictive "  have  become  so  fixed  in  the  law  that  they  cannot 
now  be  got  rid  of,  yet  they  should  never  be  used  without 
explanation  of  their  true  meaning. ^  The  law  will  not  attempt 
to  redress  a  wrong  suffered  by  the  plaintiff  by  inflicting  an- 
other wrong  on  the  defendant.  In  some  cases  the  injuries  are 
such  that  they  are  susceptible  of  a  full  and  definite  money 
compensation.  When  this  is  the  case  the  law  will  not  abandon 
a  certain  rule  which  will  do  complete  justice  for  an  uncertain 
rule  which  can  hardly  fail  to  do  injustice. ^ 

§  621.  The  same.  This  question  of  punitive  is  one  of  the 
most  difiicult  which  the  courts  have  to  deal  with,  involving  as 
it  does  a  wide  departure  from  the  plain  principles  of  the  com- 
mon law,  often  exposing  a  suitor  to  the  danger  of  being 
heavily  punished  by  what  amounts  to  a  fine  assessed  for  the 
benefit  of  his  opponent.  The  courts  should  exercise  a  most 
vigilant  watch  over  all  cases  where  such  damages  are  claimed, 
and  promptly  suppress  any  attempt  to  recover  them,  except  in 
cases  clearly  within  the  rule,  and  should  promptly  strangle 
any  attempt  to  increase  the  amount  of  such  damages  by  an 
appeal  to  the  passion  or  prejudices  of  the  jury.  In  no  case 
can  court  or  jury  be  required  to  exercise  cooler  judgment  or 

'  Heard  v.  James,  49  Miss.  236;  "Wilson  v.  Young,  31  Wis.  576;  Selden  v. 
Cashman,  20  Cal.  57.  The  terms  "punitive,"  "vindictive"  or  "exem- 
plary"  damages  have  no  ditferent  signification  in  law.  Chiles  o.  Drake,  2 
Met.  (Ky.)  146;  Brown  v.  Allen.  35  Iowa,  306. 

=*  Detroit  Daily  Post,  etc.,  v.  McArthur,  16  Mich.  452. 

•  Warren  v.  Cole,  15  Mich.  271 ;  Winchester  v.  Craig,  33  Mich.  205, 


340  DAMAGES. 

sounder  discretion  tlian  in  the  assessment  of  punitive  or  exem- 
plary damages. 

§  622.  The  same.  Actual  malice  or  gross  carelessness  must 
be  shown.  The  principal  rule  governing  such  cases  is,  that 
malice  must  appear.  The  mere  doing  an  unlawful  or  injuri- 
ous act  is  not  of  itself  sufficient  to  warrant  the  jury  in  allow- 
ing anything  beyond  compensatory  damages.  The  act  must 
be  shown  to  be  prompted  by  a  malicious  motive  or  criminal 
indifference  to  obligations,  or  done  under  circumstances  or  in 
a  manner  which  indicates  such  motives.^ 

§  623.  No  general  rule  exists  for  estimating.  ITo  gener?;! 
rule  can  be  laid  down  to  govern  cases  of  this  kind;  each  case 
must  be  controlled  by  the  circumstances  which  surround  it. 
"Where  a  trespass  is  committed  in  a  wanton  and  aggressive 
manner,  indicating  malice  or  a  desire  to  injure,  a  jury  ought 
to  be  liberal,  but  not  wanton, ^  in  compensating  the  party 
injured  in  all  he  has  lost  in  property,  and,  in  some  cases,  his 
expense  incurred  in  the  assertion  of  his  rights.  There  is,  in 
such  case,  no  fixed  standard  as  to  the  amount  which  should  be 
assessed,  the  jury  being  under  the  law  the  sole  judges,  and 
responsible  only  for  a  wise  and  proper  exercise  of  their 
judgment.  3 

§624.  Illustrations  of  the  principles.  The  following  illus- 
trations of  the  rule  will,  it  is  believed,  be  of  material  aid  in 
determining  how  far  the  courts  will  incline  to  go  in  the  direc- 
tion of  vindictive  damages:  When  plaintiff's  hogs  were  found 
in  the  defendant's  possession  under  circumstances  which  justify 
the  inference  that  he  wrongfully  took  them  with  the  intent  to 

>  Brown  v.  Allen,  35  Iowa,  306;  Seeman  v.  Feeney,  19  Minn.  79;  Ousley 
v.  Hardin,  23  111.  403;  Selden  v.  Cashman,  20  Cal.  57;  Hyatt  v.  Adams,  16 
Mich.  180.  Vindictive  damages  cannot  usually  be  recovered  against  a 
master  for  the  act  of  his  servant,  unless  he  authorized  or  ratify  the  act. 
Hagan  v.  Providence  &  W.  R.  R.  Co.,  3  R.  I.  88;  Wardrobe  v.  Calif.  Stage 
Co.,  7  Cal.  118;  Milwaukee  R.  R.  v.  Finney,  10  Wis.  388.  E.xemplary 
damages  may  be  found  against  one  of  two  defendants;  but  if  one  of  them 
be  innocent  of  malice  or  recklessness,  such  damages  cannot  be  recovered 
against  him.    Becker  v.  Dupree,  75  111.  167. 

2  Detroit  Daily  Post  v.  McArthur,  16  Mich.  447. 

2  Pacific  Ins.  Co.  v.  Conard,  1  Baldwin,  (U.  S.  C.  C.)  133;  Strasburger  v. 
Barber,  38  Md.  103. 


ILLUSTRATIONS   OF   THE   PRINCIPLES.  341 

convert  them  to  his  own  use.  He  knew  that  the  plaintiff  was 
Jiunting  them,  but  did  not  tell  him  where  they  were.  The 
plaintiff  testified  that  he  lost  two  weeks'  time  and  had  to  stop 
his  team  and  hired  hand  from  the  plow.  The  plaintiff  was 
allowed  pay  for  his  time  spent  in  hunting  his  hogs  and  his 
necessary  expenses,  in  addition  to  compensation  for  the  de- 
crease in  value  which  his  hogs  had  suffered  while  in  the 
defendant's  possession.* 

§  625.  The  same.  So  when  plaintiff's  heifer  was  taken 
secretly  by  defendant,  he  was  allowed  compensation  for  the 
tiiue  spent  in  hunting  for  her.^  "When  the  defendant  took 
the  plaintiff's  horse  and  wagon,  and  four  days'  time  was  spent 
and  other  expenses  incurred  in  the  pursuit,  a  verdict  for  the 
time  and  expenses  was  allowed  to  stand.-'*  The  phiintiff 
entrusted  fifty  head  of  cattle  to  defendant  to  feed  for  tlie 
winter,  that  he  might  have  them  ready  to  work  with  in  the 
spring,  and  the  defendant  shipped  twenty  of  the  best  and  sold 
them  for  beef.  The  cattle  were  work-cattle  when  delivered; 
but  the  plaintiff  was  entitled  to  the  value  at  the  time  of  the 
sale.'*  When  plaintiff  fraudulently  sued  out  a  writ  of  replevin 
without  color  of  right,  and  seized  the  defendant's  goods,  the 
jury  are  warranted  in  awarding  the  defendant  exemplary 
damages,  as  for  a  willful  trespass. ^ 

§  G26.  The  same.  In  Suydam  v.  Jenkins,  3  Sandf.  (N.  Y.) 
624,  the  court  stated  the  general  rule  for  ascertaining  damages 
in  cases  of  trespass,  substantially  as  follows:  "Add  to  the 
valne  of  the  property  where  the  right  of  action  accrued,  such 
damages  as  shall  cover  not  only  every  additional  loss  which 
the  plaintiff  has  sustained,  but  any  increase  of  value  which 
the  wrong-doer  has  obtained,  or  has  it  in  his  power  to  obtain." 
This  general  rule,  applied  to  cases  where  punitive  or  vindictive 
damages  would  be  improper,  seems  to  commend  itself  as  emi- 

>  Mitchell  «.  Burch,  36  Ind.  535. 

2  Miller  -».  Garling,  12  How.  Pr.  (N.  Y.)  208.  To  same  effect,  see  Mc 
Donald  v.  North,  47  Barb.  530. 

3  Bennett  v.  Lockwood,  20  Wend.  223. 

4  Otter  D.  Williams,  21  111.  118. 

*  Brizsee  u.  Maybee,  21  Wend.  144;  M'Cabe  tJ.  Morehead,  1  W.  &  S. 
(Pa.)  513;  15  Am.  L.  Reg.  525. 


342  DAMAGES. 

nently  wise  and  proper.  A  different  conclusion  in  terms, 
however,  was  reached  in  Wilson  v.  Mathews,  24  Bai-b.  295  — 
in  which  the  highest  price  of  the  property,  at  any  time  after 
the  conversion  and  before  the  trial,  was  regarded  as  the  proper 
measure  of  damages.^ 

§  627.  Party  who  acts  in  defiance  of  anotlier's  rights  is 
responsible  for  all  consequences.  The  action  of  replevin  is 
an  action  in  the  nature  of  a  tort,  and  when  the  act  is  in  fact, 
as  well  as  theory,  a  trespass,  that  is,  where  the  taking  was  in 
willful  defiance  of  the  other  party's  rights,  the  party  is  sup- 
posed to  act  with  all  the  consequences  before  his  eyes,  in  fall 
contemplation  of  all  the  damages  which  may  legitimately  fol- 
low his  act,  and  so  far  as  damages  are  plainly  the  result  of  his 
wrongful  interference,  he  is  responsible.^ 

§  628.  Vindictive  damages  against  oflacers  of  the  law.  The 
rules  governing  the  assessment  of  vindictive  damages  applies 
to  officers  of  the  law  as  well  as  to  individuals,  in  all  cases 
where  the  officer  has  acted  with  malice,  or  in  an  unjust  or 
oppressive  manner.  A  contrary  doctrine  would  turn  loose  on 
society  a  set  of  licensed  wrong-doers. ^  But  the  malicious 
motives  of  the  party  whose  process  the  officer  is  executing, 
cannot  be  given  in  evidence  against  the  officer.* 

§  629.  The  same.  Wliere  an  officer  in  the  hona  fide  dis- 
charge of  his  duty  seizes  the  goods  of  the  wrong  person, 
without  any  circumstances  showing  an  intent  to  do  a  willful 
injury,  the  fact  of  seizure  will  not  authorize  exemplary  dam- 

1  This  case  is  cited  as  overruling  Suydam  v.  Jenkins,  3  Sandf.  624,  Big. 
low  overruled  cases.  While  it  does  not  do  so  in  terms,  its  conclusions  are 
different.  See  West  v.  Wentworth,  3  Cow.  (N.  Y.)  83 ;  Com.  Bank  Buffalo 
v.  Kortright,  23  Wend.  348. 

*  Chandler  v.  Allison,  10  Mich.  461,  where  the  question  is  discussed. 
Fultz  V.  Wycoff,  25  Ind.  321;  Dubois  v.  Glaub,  52  Pa.  St.  238;  Douty  v. 
Bird,  60  Pa.  St.  48;  Hanover  R.  R.  ».  Coyle,  55  Pa.  St.  396;  Simmons®. 
Brown,  5  R.  I.  299.  The  rule  governing  cases  of  willful  trespass  is  the 
same  substantially  in  all  forms  of  action.  See  ante,  Heard  v.  James,  49 
Miss.  236. 

3  Nightingale  v.  Scannell,  18  Cal.  315;  Russell  v.  Smith,  14  Kan.  374; 
Noxon  v.  Hill,  2  Allen,  215. 

*  Nightingale  v.  Scannell,  18  Cal.  315. 


EECOUPMENT    AND   SET-OFF.  343 

ao^es.*  "When  the  defendant,  as  sheriff  and  tax  collector, 
seized  ten  horses  from  a  cattle  drover,  and  afterwards  returned 
some  of  them,  the  drover  proved  that  the  cattle  could  only  be 
driven  by  the  use  of  his  trained  horses,  etc.,  and  that  the  tax 
warrant  was  void;  but  as  there  were  no  circumstances  showinj^ 
an  intent  to  do  a  willful  injury,  the  value  of  the  property  and 
interest  only  was  allowed.  The  warrant  in  this  case,  though 
void  and  properly  excluded  as  a  justification  or  defense,  was 
proper  evidence  to  show  the  good  faith  of  the  ofiicer.^  In 
trespass  against  a  sheriff  for  wrongfully  seizing  and  selling 
goods,  where  no  circumstances  of  aggravation  appear,  the  action 
is  regarded  as  an  action  of  trover,  and  value  only  is  allowed. ^ 

§  630.  Recoupment  and  set-o£F  accounts  cannot  be  ad- 
justed in  replevin.  Accounts  cannot  be  adjusted,  nor  set-off 
allowed  in  the  action  of  replevin  or  trover.*  The  nature  of 
actions  for  tort  does  not  allow  an  examination  into  counter 
claims  of  indebtedness  or  damages.  This  is  especially  the 
case  in  re[)levin.  The  plaintiff  sued  for  specific  articles,  and 
damages  for  their  wrongful  detention,  and  it  is  contrary  to  the 
spirit  of  the  law  to  allow  an  off-set  to  be  investigated  in  cases 
of  a  suit  for  the  recovery  of  chattels  wrongfully  withheld. 

§  631.  But  questions  of  set-off  may  be  investigated  in  cer- 
tain cases.  It  does  not  follow,  however,  that  the  questions 
of  set-off  or  recoupment  cannot  be  investigated  in  replevin. 
When  property  is  distrained  for  rent,  the  plaintiff  may  show 
that  the  landlord  failed  to  keep  his  covenants  to  furnish  lumber 
for  a  ience,  and  so  show  damage  equal  to  the  rent,  and  thereby 
defeat  the  distress ;5  but  the  law  does  not  permit  a  wrongful 
taker  to  set  up  an  account  to  justify  his  taking. 

§  632.     Illustrations  of  the  rule.     When  a  note  is  sent  to 

'  Beveridge  v.  Welch,  7  Wis.  465;  Phelps  v.  Owens,  11  Cal.  25;  Selden  v. 
Cashman,  20  Cal.  57;  Williams  v.  Ives,  25  Conu.  573. 

'  Dorsey  v.  Manlove,  14  Cal.  555. 

'  Phelps  V.  Owens,  11  Cal.  25;  Brannin  v.  Johnson,  19  Me.  3G1. 

*  Otter  V.  Williams,  21  111.  120;  Stow  v.  Yarwood,  14  111.  427;  Keaggy  v. 
Eite,  12  111.  101 ;  Streeter  v.  Streeter,  43  III.  155. 

»  Lindley  tj.  Miller,  67  111.  248;  Fairman  v.  Fluck,  5  Watts,  516;  Phillips 
V.  Monges,  4  Whart.  225 ;  Peck  v.  Brewer,  48  111.  55 ;  Peterson  v.  Haight,  3 
Whart.  (Pa.)  150;  Warner  v.  Caulk,  3  Whart.  (Pa.)  193. 


344  DAMAGES. 

an  attorney  for  collection,  and  he  is  sued  in  trover  for  tlie 
value  of  the  note,  he  may  recoup  the  value  of  his  services  in 
collecting,!  under  plea  of  general  issue.'  Keplevin  for  wheat; 
the  defendant  justified  the  detention  on  the  ground  that  he 
liad  a  lien  as  a  warehouseman  for  storage,  and  the  plaintiff 
contended  that  some  forty  bushels  of  wheat,  equal  in  value  to 
the  storage,  were  destroyed.  Ueld^  proper  matter  for  investi- 
gation in  replevin,  and  that  the  damage  might  off-set  or 
extinguish  the  lien.^  A  lien  for  freight  is  a  proper  matter 
of  recoupment  when  a  carrier  is  sued  in  trover  for  goods  lost;"* 
and  generally  whatever  demand  the  defendant  has  growing 
out  of  the  same  subject  tnatter  as  the  plaintiff's  claim,  may 
be  recouped. '^ 

§  633.  Set-oflf  to  suit  upon  bond.  Suit  on  the  bond  is  in 
the  nature  of  a  contract,  and  set-off  or  recoupment  properly 
pleaded,  may  be  shown.* 

»  Turner  v.  Retter,  58  111.  265. 

9  Babcock  •».  Trice.  18  111.  420. 

»  Babb  V.  Talcott,  47  Mo.  343.  * 

<  Saltus  V.  Everett,  20  Wend.  267. 

»  Streeter  v.  Streeter,  43  111.  155;  Sears  9.  Wingate,  S  Allen,  103. 

•  Balsley  v.  Hoflmaa,  13  Pa.  St  603. 


PAKTIES    WHO    MAY    BE   PLAINTIFF    AND    DEFENDANT.        S45 


CHAPTER  XIX. 


PARTIES. 


Section. 

Parties  who  may  be  plaintiif 
and  defendant  ....  634 

Owners  of  distinct  interests 
cannot  be  joined;  joint  own- 
ers must  be     ...        . 

Trustees,  executors  and  admin- 
istrators may  be  plaintifis 

Suit  against  an  executor  or  ad- 
ministrator     .... 

A  parisli  or  corporation  may 
bring  tlie  action 

Whether  an  assignee  of  prop, 
erty  in  the  possession  of  an- 
other can  sue    . 


635 


636 


637 


638 


639 


Section 

Sale  of  property  permitted  not- 
witiistanding  adverse  posses- 
sion of  another 

The  same.  Purchaser  may  re- 
cover         

The  same.    Illustrations  . 

A  father  may  sue  for  property 
of  his  minor  cliild  . 

Servant  cannot  sue  for  his  mas- 
ter's goods       .... 

Receiptor  of  an  officer 

Attaching  creditor  not  liable 
jointly  with  the  officer  .        .  646 

Minor  cannot  sue       .        .        .  647 


640 

641 
642 

643 

644 
645 


§  634.  Parties  who  may  be  plaintiflf  and  defendant.  The 
party  whose  legal  rights  have  been  invaded  is  the  proper  party 
plaintiff  in  all  cases,  except  when  he  labors  under  some  per- 
sonal disqualification,  such  as  infancy,  insanity,  or  the  like.  In 
replevin  the  person  having  the  right  to  itnjnediate  and 
exclusive  possession  is  the  proper  plaintiff,  and  the  person 
who  has  the  actual  possession  is  the  proper  defendant. 
The  action  is  sometimes  permitted  against  one  who  has 
had  possession  of  the  property  and  has  made  way  with  it. 
The  exceptions  to  the  general  rule  have  been  stated. ^ 
Where  the  supervisor  of  a  township  is  required  by  law  to 
keep  and  preserve  all  books  and  papers  belonging  to  his 
office,  he  may  maintain  replevin  for  such  books  or  papers 
against  any  one  who  assumes  to  take  them.^  Tliere  appears 
to  be  no  authority  for  allowing  a  stranger  who  claims  an  inter- 


»  See  ante,  %%  145  and  146. 

«  PheuLs  t?.  Clark,  2  Gibbs,  (Mich.)  327. 


34G  PARTIES. 

est  in  the  property  to  come  in  and  be  made  a  party,  and  have 
his  rights  litigated,  though  such  course  would  not  violate  any 
principle  of  the  law.  An  independent  replevin  suit  against 
the  plaintiff  in  possession  has  been  allowed.  This  rule  has 
l)ecn  carried  so  far  that  when  goods  are  replevied  from  an 
agent  or  bailee,  the  owner,  if  a  stranger  to  the  suit,  has  been 
allowed  an  independent  replevin  suit  against  the  plaintiff  in 
the  first  suit,  and  not  driven  to  appear  and  defend  the  suit 
against  his  agent. ^ 

§  635.  Owners  of  distinct  interests  cannot  be  joined;  joint 
owners  must  be.  The  action  cannot  be  sustained  by  joining 
several  parties  owning  several  and  distinct  interests.  The  in- 
terests of  all  when  aggregated  may  amount  to  the  entire 
property,  yet  they  are  several  and  cannot  be  recovered  in  a 
joint  judgment,^  But  all  the  joint  owners  or  joint  tenants 
must  join;  the  owner  of  a  part  has  no  exclusive  right  to  pos- 
sess the  whole.*  When  parties  jointly  cultivate  lands,  they 
may  be  regarded  as  joint  owners  of  the  crop,  and  all  must  join 
in  an  action  for  its  rccovery  or  value.'*  So  when  mills  are 
worked  on  shares,  the  owner  and  occupant  may  be  considered 
as  tenants  in  common  of  the  product,  and  may  join  in  an 
action. 5  Where  a  society  contributed  money  for  the  relief 
of  the  members,  which  was  put  in  a  box  and  entrusted  with 
one  member,  he  was  not  permitted  to  bring  trover  against  an- 
other member  who  took  it  from  him;^  but  if  the  box  with  the 
funds  was,  by  agreement  of  all,  left  with  one  for  safe  keeping 
and  to  disburse  on  the  order  of  the  society,  no  reason  is  per- 
ceived wh}^  he  might  not  have  sustained  replevin  for  it  against 
any  one  who  took  if  So  the  agent  of  several  owners  of  a 
whaling  vessel,  who  has,  by  usage  of  the  port,  authority  to  sell 
the  cargo  and  distribute  the  supplies,  may  sustain  replevin 

'  White  V.  Dolliver,  113  Mass.  400.    Compare  Globe  Works  v.  Wright, 
106  Mass.  207. 

*  Chambers  v.  Hunt,  18  N.  J.  L.  380. 
8  See  ante,  Chap.  VI. 

*  Putnam  v.  Wise,  1  Hill,  235. 

»  Rich  V.  Penfield,  1  Wend.  879. 

«  Holliday  v.  Camscll,  1  Durnf.  &  E.  658. 

»  Newton  v.  Gardner,  24  Wis.  233 ;  Corbett  v.  Lewis,  53  Pa.  St.  333. 


SUIT   AGAINST   EXECUTOE    OK    ADMINISTKATOR.  347 

against  aiij  of  the  joint  owners  who  maj  refuse  to  deliver  it 
to  him;i  but  in  such  case  his  right  must  be  irrevocable.  If 
one  of  the  joint  owners  may  revoke  the  authority,  the  refusal 
to  deliver  will  be  a  revocation.^  But  trover  may  be  brought 
by  one  joint  tenant  by  his  co-tenant  for  joint  property  which 
the  defendant  has  destroyed. ^  When  one  tenant  in  common 
takes  all  the  chattels,  the  co-tenant  hath  no  action,  but  may 
retake  them  if  he  can.* 

§  636.  Trustees,  executors  and  administrators  maybe  plain- 
tiffs. Tiie  action  may  be  sustained  by  trustees  when  they  ai-e 
entitled  to  the  possession  of  chattels  in  that  capacity  ;5  or  by 
one  entitled  to  possession  for  the  use  of  another;'  or  by  an 
executor  or  administrator  in  his  capacity  as  representative  of 
the  deceased.'  Such  a  one  can  also  sue  in  his  individual 
capacity  in  cases  where  he  is  individually  liable. ^  Where 
brought  by  an  executor  or  administrator,  for  a  taking  or  de- 
tention from  the  deceased  in  his  lifetime,  the  plaintiff  mu  t 
show  the  right  of  possession  in  the  deceased,  his  death, 
together  with  the  legal  qualification  of  the  plaintiff  as  such 
executor  or  administrator. ^ 

§  637.  Suit  against  an  executor  or  administrator.  When 
the  suit  is  against  an  executor  or  administrator,  it  should  be 
against  him  individually;  his  taking  or  subsequent  detention 
is  not  the  act  of  the  estate,  but  of  himself  as  an  individual. lo 
An  administrator  cannot  in  his  olHcial  capacity  commit  a 
tort.  11     When  the  taking  was  by  the  deceased  in  his  lifetime, 

'  Rich  V.  Rider,  105  Mass.  307. 

'  See  Huat  v.  Rousmanier,  8  Wlieat.  174;  Roberts  v.  Wyatt,  2  Taunt.  2G8. 

»  Wilson  V.  Reid,  3  Johns.  174. 

*  Coke  on  Lit.,  tit.  Trover. 

*  Baker  v.  Washington,  et  al.,  5  Stewart  &  P.  (Ala.)  144. 

*  Pearce  v.  Twitchell,  41  Miss.  344. 

^  Cravath  v.  Plympton,  13  Mass.  454;  Hambly  v.  Trott,  1  Cowp.  374; 
Cummings  v.  Tindall,  4  Stewart  &  P.  (Ala.)  361 ;  Allen  and  wife  v.  White, 
Admr..  16  Ala.  181. 

«  Palchen  v.  Wilson,  4  Hill,  59;  Branch  v.  Branch,  6  Fla.  315;  Carlisle  v. 
Barley,  3  Gr.  (Me.)  250;  Hollis  v.  Smith,  10  East.  293. 

»  Halleck  v.  Mixer,  10  Cal.  574;  Branch  v.  Branch,  6  Fla.  315. 

10  Smith  V.  Wood,  31  Md.  293. 

»  Rose  V.  Cash,  58  Ind.  278. 


348  PARTIES. 

and  the  property  is  detained  by  the  administrator  or  executor, 
such  facts  may  be  alleged  and  proved  in  an  action  against  the 
latter.  ^ 

§  638.  A  parish  or  corporation  may  bring  the  action.  In 
Massachusetts,  where  the  parochial  system  prevailed,  the  action 
was  permitted  in  the  name  of  a  parish  for  tlie  recovery  of  its 
records.2  It  will  also  lie  by  or  against  a  corporation  ;3  but  the 
corporation  must  sue  in  its  corporate  name  and  capacit3\  Indi- 
vidual members  composing  the  body  cannot  assert  the  right 
of  the  corporation.*  It  has  been  said  that  replevin  would 
not  lie  against  a  corporative  aggregate,  tlie  reason  being 
that  such  body  could  only  distrain  by  bailiff,  and  the  bailiff 
would  be  the  proper  defendant  in  a  replevin  suit  of  the  dis- 
tress.5  This  doubtless  was  in  conformity  to  the  old  rule; 
but  in  modern  jurisprudence  a  different  practice  has  sprung 
up.  It  has  been  held  that  tres])ass  for  assault  and  battery 
would  not  lie  against  a  corporation,  for  the  reason  that  such  a 
tort  could  only  be  committed  by  some  person,  whHe  a  corpor- 
ation had  no  tangible  existence;^  but  this  case  was  subse- 
quently considered  in  an  Illinois  case  and  its  authority 
denied ;''  and  the  latter  case  is  doubtless  the  true  exponent  of 
the  law  on  this  subject.  Any  other  rule  would  enable  a  cor- 
poration to  employ  a  worthless  bailiff,  and  deprive  the 
plaintili'  of  all  the  benefit  of  the  remedy. ^ 

§  639.  Whether  an  assignee  of  property  in  the  possession 
of  another  can  sue.  The  question  as  to  whether  the  owner  of 
goods  which  have  been  wrongfully  taken  can  transfer  the  prop- 
erty, and  with  it  a  cause  of  action,  is  one  upon  which  the 
authorities  are  at  variance.     By  the  common  law,  the  right  of 

J  Brewer  v.  Strong's  Exrs.,  10  Ala.  965;  Easly  v.  Boyd,  13  Ala.  685. 

«  Sudbury  v.  Stearns,  21  Pick.  148. 

2  Beech  V.  Fulton  Bank,  7  Cow.  (N.  Y.)  485;  Maund  v.  M.-nmouth  Canal, 
1  Carr.  &  Marsh,  GOG;  Fayette  Ins.  Co.  v.  Rogers,  30  Barb.  491. 

*  Bartlelt  v.  Brickelt,  14  Allen,  63. 

B  Barb,  on  Parlies,  214. 

«  Orr  V.  Bank  of  the  United  States,  1  Ham.  (O.)  37 ;  Bradley  on  Distresses, 
91. 

'  C.  &  A.  R.  R.  V.  Dalby,  19  111.  353. 

8  See  C.  &  N.  W.  Ry.  v.  Peacock,  48  111.  253,  where  trespass  was  sus- 
tained  against  a  corporation. 


SALE    OF    PEOPERTV   PERMITTED.  349 

action  was  not  assignable.  The  owner  of  property  in  tlie  pos- 
session of  another  who  claimed  to  own  it  was  looked  upon  as 
having  a  right  of  action  which  he  must  proceed  upon  in  his 
own  name,  or  forego  his  right.  He  was  not  permitted  to  sell 
and  transfer  this  right  to  sue  to  another.^  The  term  ^^  chose 
in  action''''  includes  all  rights  to  personal  property  not  in  pos- 
session, wliich  may  be  enforced  in  an  action  at  law,  and  is  not 
limited  to  damages  recoverable  for  breach  of  contract.^  And 
cJioses  in  action  were  not  assignable  at  the  common  law,  and 
especially  the  right  to  sue  for  a  tort  was  the  personal  privilege 
of  the  party,  and  not  transferable. 

§  640.  Sale  of  property  permitted,  notwithstanding  adverse 
possession  of  another.  The  right  to  sue  in  replevin  has  there- 
fore been  denied  to  an  assignee  of  property  in  the  possession 
of  another.  This  was  placed  upon  the  ground  that  the  assign- 
ment was  a  mere  transfer  of  a  right  to  sue,  or  a  right  to  liti- 
gate, arising  out  of  a  tort.^  Statutory  changes,  however,  have 
been  made  in  many  of  the  States,  which  do  away  with  the 
common  law  rule,  and  permit  an  assignment  in  such  cases,  and 
allow  the  assignee  to  sue  in  his  own  name.*  Cases  are  numer- 
ous in  modern  practice  where  the  assignment  has  been  regarded, 
not  as  a  transfer  of  a  cause  of  action,  with  the  right  to  litigate, 
but  as  a  sale  of  the  property. ^  The  courts  hold,  that  when  the 
owner  of  property  elects  to  part  with  it,  and  does  sell  it  to  one 
who  is  competent  to  acquire  title,  the  wrongful  act  or  trespass 
of  a  third  party  shall  not  be  permitted  to  defeat  a  contract 
otherwise  valid  and  complete.^  The  reasoning  of  IIallet,  C. 
J.,  in  Ilanauer  v.  Bartels^  carries  considerable  force  in  sup- 
port of  this  doctrine.     He  says,  in  substance,  that  "  the  taking 

1  1  Ch.  Plea.  15;  O'Keefe  v.  Kellogg,  15  111.  352;  McGooa  v.  Ankeny,  11 
111.  5o8;  Clapp  v.  Shepard,  2  Met.  127. 

2  Gillet  v.  Fairchild,  4  Denio,  81. 

'  Nash  v.  Fredericks,  13  Abb.  Pr.  R.  147,  cases  last  cited. 

«  Lazard  v.  AVbeeler,  22  Cal.  140. 

'  Cummings  v.  Stewart,  42  Cal.  230 ;  McKee  v.  Judd.  3  Kernan,  C32 ;  Hoyt 
V.  Thompson,  1  Seld.  347;  Hall  v.  Robinson,  2  Corast.  295;  North  v.  Tur- 
ner, 9  S.  &  R.  244;  DeWolf  v.  Harris.  4  Mason,  530;  Cass  v.  N.  Y.  &  N.  H. 
R.  R.,  1  E.  D.  Smith,  533. 

*  Webber  v.  Davis,  44  Me.  147 ;  Morgan  v.  Bradley,  3  Hawks,  (N.  C.)  559. 


350  PARTIES. 

and  detention  of  property  by  a  wrong  doer  does  not  deprive 
the  owner  of  the  power  of  making  a  valid  sale  of  it.  The 
purchaser,  upon  giving  the  holder  notice  of  the  transfer,  may 
demand  the  property,  and  upon  refusal,  may  maintain  an 
action  for  the  wrongful  detention.  *  *  *  When  the  ven- 
dor and  vendee  of  property  are  of  an  agreeing  mind,  where 
one  intends  to  sell  and  deliver,  and  the  other  to  accept,  the 
object  sought  to  be  obtained  cannot  be  defeated  by  the  wrong- 
ful act  of  a  third  person,  who  has  no  other  title  than  naked 
possession. "1 

§  641.  The  same.  Purchaser  may  recover.  In  addition  to 
the  soundness  of  this  reasoning,  the  rule  is  supported  by  many 
well  considered  cases. ^  Lazard  v.  Wheeler,  22  Cal.  140,  was 
a  case  where  this  question  was  presented,  but  decided  on  the 
authority  of  the  code  of  that  State,  though  the  opinion  of  the 
court  clearly  indicates  that,  aside  from  the  provisions  of  the 
Code,  the  action  might  be  brought  by  an  assignee.  In  Tome 
V.  Dubois,  6  Wall.  (U.  S.)  548,  the  Supreme  Court  of  the 
United  States  saj's,  that  owners  of  personal  property  are  not 
obliged  to  treat  the  acts  of  third  persons,  who  invade  their 
rights  of  property  or  possession,  as  a  conversion.  They  may 
elect  to  waive  the  tort,  and  in  such  case  may  sell  the  prop- 
erty, and  the  purchaser  may,  after  demand,  sustain  trover  or 
replevin. 

§  642.  The  same.  Illustrations.  The  assignee  of  a  note, 
and  chattel  mortgage  to  secure  it,  may  sustain  replevin  for  the 
mortgaged  property  upon  condition  broken.'  Goods  which 
have  been  seized  by  the  sheriff  on  process,  may  be  sold  by  the 
owner.  This  is  not  regarded  as  a  sale  of  the  cause  of  action, 
but  of  the  goods.*  When  the  plaintiff  in  replevin  delivered 
the  chattel  to  his  bondsman  as  his  security,  and  was  afterwards 

'  Hanauer  v.  Bartels,  2  Col.  522. 

s  Cass  V.  N.  Y.  &  N.  H.  R.  R,  1  E.  D.  Smith,  522;  McGinn  v.  Worden,  3 
E.  D.  Smith,  355;  Hall  v.  Robinson,  2  Comst.  295;  Cartland  t).  Morrison, 
32  Me.  190;  The  Brig  Sarah,  etc.,  2  Sumn.  (U.  S.  C.  C.)  211;  Hall  v.  Robin- 
son,  2  Comst.  (2  N.  Y.)  293;  Parsons  ?;.  Dickinson,  11  Pick.  354;  Carpenter 
t.  Hale,  8  Gray,  (Mass.)  157;  Webber  v.  Davis,  44  Me.  147. 

«  Barbour  v.  Wiiite,  37  111.  165;  Hopkins  v.  Thompson,  2  Port.  (Ala.)  434. 

*  Coghill  V.  Boring,  15  Cal.  218. 


EECEIPTOR    OF   AN   OFFICER.  351 

declared  bankrupt,  the  security  was  permitted  to  recover  in  tlie 
bankrupt's  name,  for  his  own  benefit. ^ 

§  643.  A  father  may  sue  for  property  of  Ms  minor  child.  A 
father,  being  the  natural  guardian  of  his  minor  children,  when 
thej  ha.ve  no  other  guardian,  may  sustain  replevin  for  their 
personal  property,^  or  the  infant  may  sue  by  his  guardian  or 
next  friend;  but  a  father  would  not  be  liable  for  a  willful  tak- 
ing by  his  minor  child,  unless  he  in  some  way  countenance  or 
encourage  it,^  the  minor  himself  being  liable  for  his  torts.* 
A  guardian  may  maintain  the  action  for  property  belonging 
to  his  ward,  of  which  he  is  entitled  to  possession. ^ 

§  64:4:.  Servant  cannot  sue  for  his  master's  goods.  A  mere 
servant  who  has  possession  of  goods  by  delivery  from  his  mas- 
ter, Avhich  the  master  may  at  any  time  put  an  end  to,  has  not 
such  property  or  right  of  possession  as  will  enable  him  to  sus- 
tain this  action. <•  But  if  one  deliver  goods  to  his  servant  as 
his  bailee,  and  where  the  latter  is  responsible  for  them,  he  may 
be  plaintiff  in  an  action  of  trover.''  Sj  an  officer  who  has 
seized  goods  upon  process  has  sufficient  property  in  them  to 
sustain  the  action;  he  is  responsible  to  the  plaintiff  in  his  pro- 
cess.8  Where  a  commission  in  bankruptcy  issues  the  assignee 
cannot  sue  an  officer  for  goods  of  the  bankrupt  seized  before 
the  appointment  of  the  assignee,  though  the  officer  sells 
afterward.' 

§  645.  Receiptor  of  an  oflBeer.  The  question  as  to  whether 
a  receiptor  to  an  officer  who  has  seized  goods  on  execution  or 
attachment  has  such  a  property  as  will  enable  hiiri  to  sustain 
replevin,  has  given  rise  to  contradictory  decisions.     This  right 

>  Sawtelle  v.  Rollins,  23  Me.  196. 

«  Smith  V.  Williamson,  1  Har.  &  J.  (Md.)  147;  Newman  v.  Bennett,  23  111. 
427. 

3  Tifft  V.  Tifft,  4  Denio,  175. 

*  School  Dist.,  etc.,  v.  Bragdori,  23  N.  H.  507,  cited  as  Milton  v.  Bragdon, 
23  N.  H.  507. 

*  Deacon  v.  Powers,  57  Ind.  489;  Newman  v.  Bennett,  2\  111.  427. 

«  Harris  v.  Smith,  3  8.  «&  R.  (Pa.)  23*;  Browneil  v.  Manchester,  1  Pick. 
232;  Clark  v.  Skinner,  20  Johns.  463;  Luddea  v.  Leavitt,  9  Mass.  104. 
'  Harris  v.  Smith,  3  Serg.  &  R.  23. 
8  Browneil  v.  Manchester,  1  Pick.  233. 
»  Smith  V.  Clark,  4  Duruf.  &  E.  476. 


352  PARTIES. 

has  been  denied  in  many  cases. ^  In  Miller  v.  Adsif,  16 
Wend.  335,  after  an  elaborate  discussion  of  the  question  and 
the  authonities  pro  and  con.,  the  court  held  that  a  receiptor, 
where  he  was  accountable  to  the  officer,  had  such  possession 
as  would  enable  him  to  sue.  It  is  difficult  to  see  aay  good 
reason  which  should  deny  tlie  right  of  action  to  such  a  pei-son 
where  by  the  terms  of  the  deposit  he  has  the  rightful  posses- 
sion of  the  goods,  and  is  responsible  to  the  officer  for  their  safo 
return.  His  capacity  is  ratlier  that  of  a  bailee  than  a  servant; 
he  has  an  interest  in  the  protection  of  the  goods,  and  such  a 
right  as  would  justify  him  in  resisting  a  trespass;  he  would 
be  liable  for  the  value  in  case  he  failed  to  protect  them. 

§  6^1:6.  Attaching  creditor  not  liable  jointly  with  the  oflFicer. 
An  attaching  creditor  is  not  liable  jointly  with  the  sheriff  who 
serves  the  attachment  and  takes  possession  of  the  property. 
The  officer  is  tlie  proper  defendant. ^  When  the  attacliing  cred- 
itor has  possession  of  tlie  goods  he  may  be  a  defendant;  and 
an  attaching  creditor  cannot  be  joined  as  plaintiff  with  the 
officer  for  a  taking  of  goods  from  the  officer's  possession  unless 
he  had  some  possession  at  the  time  of  taking. 

§  647.  Minor  cannot  sue.  A  minor  cannot  sustain  tho 
action  in  his  own  name. .  Two  partners  who  were  minors 
joined  in  a  chattel  mortgage;  one  of  them  became  of  age  and 
ratified  the  mortgage;  the  other  could  not  sustain  replevin 
after  dissolution  of  the  firm,  though  he  had  acquired  the  inter- 
est of  the  other  partner.  A  minor  must  sue  by  his  guardian 
or  next  friend. ^  The  same  rules  apply  to  one  laboring  under 
any  other  legal  disability.  The  surviving  partner  is  entitled 
to  the  possession  of  the  goods  of  the  firm,  and  may  recover 
them  from  one  who  wrongfully  interferes;  it  is  not  necessary 
that  he  declare  as  surviving  partner;  his  right  to  recover  is 
an  individual  right,  and  he  is  not  required  to  state  the  facts 
under  which  he  claims  title.*     In  some  States  local  laws  vests 

>  Ludden  v.  Leavitt,  9  Mass.  104;  Warren  v.  Leland,  9  Mass.  265;  Com- 
monwealth  z).  Morse,  14  Mass.  217;  Dillenback  v.  Jerome,  7  Cow.  294;  Nor- 
ton  V.  People,  8  Cow.  137. 

2  Richardson  v.  Reed,  4  Gray,  (Mass.)  443;  Ladd  v.  North,  2  Mass.  516. 

»  Keegan  v.  Cox,  116  Mass.  290. 

*  Smith  V.  Wood,  31  Md.  293. 


MLNOK   CANNOT   SUE.  353 

the  administrator  with  the  interest  of  the  deceased  partner  in 
partnership  chattels.     In  such  cases  the  administrator,  and  not 
the  surviving  partner,  maj  sue. 
23 


351 


PLEADING. 


CHAPTER   XX. 


PLEADING. 


Pleading     

Established  rules  govern  . 

The  afBdavit       .        .        .        . 

A  prerequisite  to  delivery . 

Must  not  be  entitled  . 

Must  be  drawn  to  meet  the  evi- 
dence        

Takes  the  place  of  the  plaint  . 

By  whom  made.  General  re- 
quisites   .        .        ... 

Meaning  of  the  term  owner 

Defects  in,  when  to  be  taken 
advantage  of,  and  how  . 

The  truth  of  the  affidavit  not  in 
issue 

Statement  of  value  of  the  prop- 
erty   

Statement  of  value  in  affidavit, 
how  far  binding 

Must  state  that  the  property  wa3 
not  taken  for  any  tax,  assess- 
ment  or  fine    .        .        .        . 

Or  upon  execution  or  attach- 
ment, etc 

Or  upon  writ  of  replevin  against 
plaintiff 

Strict  compliance  with  these 
conditions  required 

Must  contain  a  correct  descrip- 
tion of  the  property ;  ameniJ- 
ments 


Section. 

.  648 


649 
650 
651 
653 

653 
654 

655 
656 

657 

658' 

659 

660 


661 


662 


663 


664 


665 


Section. 

The  declaration ;  several  counts 
joined       

Rights  of  parties  under  a  single 
count       .        . 

Count  in  trover  for  goods  not 
delivered 

Value  of  such  goods  usually 
given  in  damages    . 

Form  of  the  declaration ;  wrong- 
ful detention   .... 

Allegation  of  wrongful  taking; 
special  damages  must  be  spe- 
cially alleged  .... 

The  same.  Special  require- 
ments        

The  same.  Allegations  as  to 
time  and  place 

The  same 

Averment  of  wrongful  deten- 
tion essential  .... 

Evidence  of  title  not  necessary 
to  be  stated      .... 

The  same.  An  averment  of 
right  of  possession  sufficient.  677 

The  same.     Observations  .        .  678 

Where  the  complaint  follows 
the  statute        .... 

Declaration  should  state  value 
of  goods  

Averment  of  demand        . 

Must  claim  damaores  . 


666 


667 


668 


669 


670 


671 

672 

673 
674 

675 

676 


679 

680 
681 


§  648.     Pleading.     The  pleadings  in  replevin  at  common 
law  were  complicated  and  peculiar   to   this  action. i     TJiey 


*  Robinson  v.  Calloway,  4  Ark.  100 ;  Southall  v.  Garner,  2  Leighs,  (Va.) 


ESTABLISHED    RULES    GOVERN.  355 

have,  liowever,  been  greatly  simplified  by  modern  legislation, 
aided  by  tiie  liberal  construction  of  the  courts.  The  limits 
of  this  work  will  not  permit  the  consideration  of  any  of  the 
local  statutes:  a  statement  of  the  general  principles  is  all  that 
can  be  attempted. 

§  649.  Established  rules  govern.  Established  rules  and 
precedents  should,  in  all  cases,  be  followed.  Any  unnecessary 
departure  from  the  recognized  procedure,  whether  it  arise 
from  love  of  change,  or  from  carelessness  or  ignorance,  should 
not  be  encouraged.  1  Statutory  provisions  where  they  exist, 
whether  they  relate  to  the  forms  of  pleading  or  mode  of  pro- 
cedure, must  be  strictly  followed. ^  Each  State  has  its  own 
peculiar  laws  which  govern  its  practice.  These  are  constanth' 
being  changed,  and  any  attempt  to  state  them  would  be  likely 
to  mislead. 

§  650.  The  aflSdavit.  The  first  step  in  the  proceeding  is 
the  affidavit.  This,  though  not  a  part  of  the  record,^  is  one 
of  the  most  important  papers  in  the  case.  It  is  essential  in 
all  cases  where  the  plaintiff  desires  a  delivery  of  the  property 
pending  the  action.  In  many  of  the  States  the  plaintiff  may 
elect  to  begin  and  prosecute  his  suit  without  asking  delivery 
of  the  goods  prior  to  judgment.  Under  such  circumstances 
neither  affidavit  nor  bond  is  necessary.* 

§  651.     A  prerequisite  to  delivery.     In  all  cases  where  the 

372;  Rogers  v.  Arnold,  12  Wend.  31;  Gilb.  on  Replevin,  119;  1  Ch.  Plea, 
title  Replevin;  Woodf.  on  L.  &  T.  588;  Bacon  Abr.  title  Replevin  and 
Avowry.  Botli  parties  are  plaintifi';  each  may  claim  judgment.  Seymour 
V.  Billings,  13  Wend.  286;  Persse  v.  Watrous,  30  Conn.  146;  Brown  v.  Smith, 
1  N.  H.  36;  McLarren  v.  Thompson,  40  Me.  285;  Poor  v.  Woodburn,  25 
Vt.  239. 

1  McPherson  v.  Melhinch,  20  Wend.  671 ;  Anstice  v.  Holmes,  3  Denio, 
245. 

*  Pirani  v.  Barden,  5  Ark.  81.  When  petition  complies  substantially 
with  the  provision  of  the  statute,  it  is  sufficient.  The  form  or  words  of  tlie 
statute  need  not  be  literally  followed.  Smith  v.  Montgomery,  5  Iowa,  371 ; 
Auld  V.  Kimberlin,  7  Kan.  601 ;  Busick  u.  Bumm,  3  Iowa,  63. 

3  Town  V.  Wilson,  8  Ark.  (3  Eng.)  465;  Loomis  v.  Youle,  1  Minn.  175; 
Coxc.  Grace,  5  Eng.  (Ark.)  86.     Contra,  see  Newell  v.  Newell,  34  Miss.  385. 

*  Baker  v.  Dubois,  32  Mich.  92;  Catterlin  v.  Mitchell,  27  Ind.  293;  Hod- 
son  V.  Warner,  60  Ind.  214. 


356  PLEADIS-G. 

plaintiff  aslvS  a  delivery  of  the  goods  in  the  first  instance,  the 
afiidavit  is  a  prerequisite  to  the  issuing  of  the  writ  or  order 
lor  delivery.  Without  it  the  writ  would  be  a  nullity  if  issued, 
and  the  suit  must  fail.^  The  affidavit  is  in  no  way  essential 
to  the  trial  of  the  casc.^  It  is  not  evidence  and  does  not 
prove  or  tend  to  prove  the  plaintiff's  title  to  the  property, 
though  its  statements  as  to  value  of  the  property  may  some- 
times be  taken  to  estop  the  plaintiff  who  made  it  from  assert- 
ing a  different  value.^  Its  truth  or  falsity  is  not  a  question 
at  issue  on  the  trial.* 

§  652.  Must  not  be  entitled.  The  affidavit  must  not  be 
entitled  in  the  suit.  The  reason  is  that  at  the  time  of  making 
it  there  is  no  suit  pending.  ^ 

§  653.  Must  be  drawn  to  meet  the  evidence.  The  affidavit 
should  be  framed  with  a  view  to  the  evidence  which  will  be 
produced  at  the  trial.  If  the  action  be  for  a  wrongful  deten- 
tion, proof  of  a  wrongful  taking  would  sustain  such  an 
averment  without  proof  of  demand.^  Proof  of  a  wrongful 
detention,  however,  will  not  sustain  an  averment  of  a  wrongful 
takino-.  If  the  evidence  will  sustain  an  averment  of  wronof- 
ful  taking,  it  is  advisable,  as  simplifying  the  question  of 
damaofes,  that  the  declaration  contain  such  a  count.     The  aver- 

» Wilbur  V.  Flood,  16  Mich.  40;  Milliken  v.  Selye,  6  Hill,  633;  S.  C,  3 
Denio,  57;  Perkins  v.  Smith,  4  Blackf.  30:2;  Bridge  v.  Layman,  31  Ind.  385 ; 
Payne  v.  Bruton,  5  Eug.  (Ark.)  57;  Cutler  v.  Ratlibone,  1  Hill,  204;  Kehoe 
V.  Rounds,  69  111.  352;  McClaughry  v.  Cratzenberg,  39  111.  123;  Stacy  v. 
Farnham,  2  How.  Pr.  Rep.  26;  Phenix  v.  Clark,  2  Mich.  327.  Sheriff  or 
coroner  cannot  administer  the  oath.     Berrien  v.  Westervelt,  12  Wend.  194. 

2  Town  V.  Wilson,  8  Ark.  (3  Eng.)  464. 

s  See  ^08«,  §  658. 

<  Payne  «.  Bruton,  5  Eng.  (Ark.)  57 ;  Town  v.  Wilson,  8  Ark.  (3  Eng.)  465. 

5  Rex  V.  Jones,  1  Str.  704;  Haight  v.  Turner,  2  John.  371 ;  People  v.  Tioga 
C.  P.,  1  Wend.  292;  Hollis  v.  Brandon,  1  Bos.  &  Pull.  36;  King  «.  Cole  ^ 
Term  R.  298  and  640;  Whitney  v.  Warner,  2  Cow.  500;  Nichols  v.  Cowies, 
3  Cow.  345;  Milliken  v.  Selye,  3  Denio.  57;  Stacey  p.  Farnham,  2  Huw.  Pr. 
Rep.  26.  But  see  and  compare  in  this  respect.  In  re  Bronson  and  Mitchell, 
12  Johns.  460,  and  note.  The  venue  must  be  stated.  Compare  Cook  v. 
Staats,  18  Barb.  407. 

«  Oleson  «.  Merrill,  20  Wis.  462;  Stillman  v.  Squire,  1  Denio,  327;  Cum- 
mings  V.  Vorce,  3  Hill,  282;  Pierce  v.  Van  Dyke,  6  Hill,  613;  Cox  -o.  Grace, 
10  Ark.  87. 


MEANING    OF    "  Q-^NER '*  357 

ments  in  both  tlie  writ  and  declaration  should  follow  the 
plaint  or  affidavit.^ 

§  654.  Takes  place  of  the  plaint.  The  affidavit  takes  the 
place  of  the  plaint,  or  rather  it  is  the  plaint,  the  word  having 
the  same  meaiiin;j^  that  it  had  in  the  Statute  of  Marlbrido'e, 
That  statute  required  that  there  should  be  a  "  plaint,"  ^.  «., 
complaint.  This  M^as  simply  a  statement  to  the  sheriff  of  the 
wrongful  taking,  upon  which  he  made  the  delivery.  There 
appears  to  be  no  authority  for  saying  that  it  was,  at  that  time, 
required  to  be  in  writing.  The  affidavit  of  modern  practice 
is  the  ''  complaint"  of  olden  time.^ 

§  655.  By  whom  made.  G-eneral  requisites.  The  affidavit 
may  be  made  by  the  plaintiff,  or  some  one  in  his  behalf;  when 
made  by  an  agent,  its  averments  must  be  as  positive  as  those 
required  from  the  principal. ^  It  must  be  in  writing,  and 
signed  by  the  plaintiff,  or  his  agent  making  it.^  There  are 
cases,  however,  which  liold  that  an  affidavit  purporting  to  be 
sworn  to  by  plaintiff,  and  certified  to  be  sworn  to  by  him,  is 
good  witliout  signature.5  It  must  state  tliat  the  plaintiff'  is 
the  owner,  and  entitled  to  the  immediate  possession  of  the 
goods  about  to  be  replevied.  The  statutory  requirements  of 
the  different  States  vary  somewhat  as  to  what  is  necessarv  to 
be  stated  in  the  affidavit,  but  they  all  substantially  agree  witli 
the  common  law  upon  this  point. ^ 

§  656.  Meaning  of  "  owner."  The  term  "  owner,"  as  used 
in  this  connection,  does  not  import  absolute  ownership;  any 

'  Newell  V.  Newell,  34  Miss  386.  In  Illinois  it  is  not  necessary  to  allege 
a  wrongful  taking  or  even  a  wrongful  detention  by  the  defendant.  Whistler 
V.  Roberts,  19  111.  274.     But  this  cannot  be  stated  to  be  the  general  rule. 

2  Anderson  v.  Hapler,  34  111.  439. 

2  Frink  v.  Flanagan,  1  Gilm.  (111.)  37.  See,  also,  Branch  v.  Branch,  6 
Fla.  315. 

*  Eddy  V.  Beal,  34  Ind.  161. 

^  Jackson  v.  Virgil,  3  Johns.  540;  Shclton  v.  Berry,  19  Tex.  154;  Crist  v. 
Parks,  19  Tex.  234;  Haff  v.  Spicer,  3  N.  Y.  Term,  (Ca.  Ca.)  190.  When 
affidavit  was  signed  by  G  W.  and  R.  Hoover,  and  sworn  to  by  both,  held 
sufficient.     Hoover  v.  Rhoads,  6  Iowa,  500. 

*  In  Arkansas  plaintiff  must  swear  that  the  cause  of  action  occurred 
within  two  years.  Payne  v.  Bruton,  5  Eng.  (Ark.)  57.  See  Milliken  v. 
Selye,  3  Denio,  56. 


358  PLEADING. 

special  interest  in  tlie  property  will  be  sufficient.*  In  Oliio 
this  question  was  directly  presented.  It  was  objected  that  the 
statute  said,  "  If  any  person  shall  MTongfully  detain  the  goods 
and  chattels  of  another,  the  ^  owner, ^  his  agent  or  attorney, 
may  file,  etc.,  etc.,"  and  the  court  said  in  substance:  It  is  the 
possessory  title,  and  not  the  general  ownership,  which  must 
be  sworn  to.  Ownership  without  a  right  to  immediate  pos- 
session will  not  enable  a  man  to  make  the  statutory  affidavit; 
but  a  right  to  immediate  possession,  without  general  owner- 
ship, will.  If  the  word  owner  in  the  statute  meant  the  owner 
of  the  general  title,  then  an  owner  of  a  special  title,  such  as  a 
lease,  even  though  entitled  to  possession,  could  not  sustain  the 
action  even  against  a  trespasser.  To  hold  that  a  person  with 
a  limited  or  special  title  cannot  make  tlie  affidavit  to  sustain 
this  action,  would  destroy  the  uniform  practice,  and  frequently 
result  in  irreparable  mischief.  The  affidavit  must  be  sworn  to 
before  the  proper  officer;  in  the  absence  of  statutory  provisions 
the  sheriff  or  coroner  cannot  administer  the  oath.^ 

§  657..  Defects  in ;  when  to  be  taken  advantage  of  and  how. 
Formal  defects  in  the  affidavit  must  be  taken  advantage  of 
before  pleading  to  the  merits;  if  not,  they  will  be  considered 
as  waived. 3  Objections  to  the  affidavit  must  be  taken  by  mo- 
tion or  by  plea  in  abatement;  not  by  demurrer,*  the  reason 
beino:  that  demurrins:  will  not  reach  matters  outside  the 
record,  and  the  affidavit  is  not  a  part  of  the  record. ^  So, 
where  the  objections  to  the  affidavit  are  taken  by  motion,  the 

'  Jolinson  V.  Carnley,  6  Seld.  (N.  Y.)  578;  Spra.<?ue  v.  Clark,  41  Vt.  6 ;  Wil- 
liams V.  West,  2  Ohio  St.  83;  Rogers  v.  Arnold,  12  Wetid.  35. 

^  Berrien  ®.  Westervelt,  12  Wend.  194.  If  a  complaint  (declaration)  con- 
tains all  that  is  necessary  in  an  affidavit,  and  is  sworn  to  and  filed  before 
the  writ  issues,  the  want  of  a  separate  affidavit  on  separate  paper  cannot  be 
objected  to.  Minchrod  v.  Wiudoes,  29  Ind.  288.  See,  also,  Perkins  v. 
Smith.  4  Blackf  (Ind.)  299. 

'  Defects  in  affidavits  are  waived  if  defendants  appear  and  go  to  trial 
without  objection.  Smith  v.  Emerson,  16  Ind.  355.  See-Tripp  v.  Howe,  45 
Vt.  523;  Eddy  v.  Beal,  34  Ind.  161;  Lewis  v.  Brackenridge,  1  Blackf.  112; 
Baker  v.  Dubois,  32  Mich.  92 ;  Perkins  v.  Smith,  4  Blackf.  (Ind.)  299 ;  Friuk 
v.  Flanagan,  1  Gilni.  38. 

•  De  Wolf  V.  Harris,  4  Mason  C.  C.  515. 

»  Cox  V.  Grace,  5  Eng.  (Ark.)  86.  ^, 


STATEMENT   OF   VALUE   OF   PROPERTY.  359 

motion  ought  to  set  ont  and  crave  oyer  of  it;  otherwise  the 
court  may  refuse  to  examine  or  pass  upon  it.^ 

§  658.  The  truth  of  the  affidavit  not  in  issue.  The  truth  or 
falsity  of  the  affidavit  is  not  a  question  wliieh  can  be  enquired 
into  upon  the  trial,  except  so  far  as  the  issues  may  go.  It  in 
no  way  affects  the  issues;  it  is  not  proof  for  the  party  making 
it.2  The  want  of  one  mav  be  brought  to  the  knowledo^e  of 
the  court  by  motion.  No  reason  is  perceived  why  defects  in 
an  affidavit  may  not  be  taken  advantage  of  by  properly  point- 
ing them  out  by  a  motion  in  writing.  In  many  of  the  States 
this  would  be  sufficient,  though  a  plea  in  abatement  is  more 
technical  and  exact.  When  the  motion  shows  the  want  of  an 
affidavit,  the  plaintiff  may  show  that  it  is  lost,  and  ask  and 
obtain  leave  to  supply  its  place.'  This  cannot  be  done  by  the 
clerk,  or  by  simply  filing  a  new  affidavit  with  him;  the  court 
must  make  the  order  after  an  examination  into  the  question 
as  to  whether  it  is  a  copy  or  not  of  the  instrument  offered. 

§  659.  Statement  of  value  of  property.  The  common  prac- 
tice in  most  of  the  States  is  for  the  affidavit  to  state  the  value 
of  the  property. 4  This  is  usually  accepted  as  the  true  value 
by  the  sheriff  when  he  comes  to  take  bond.  However,  this  is 
not  obligatory  upon  him.  When  no  appraisement  is  required 
by  the  statute,  he  must  be  the  judge  as  to  whether  the  value 
stated  in  the  affidavit  is  sufficient.  If  he  is  of  opinion  it  is 
not,  he  should  require  bond  in  double  such  sum  as  he  believes 
to  be  the  true  value. '^  For  any  failure  to  take  adequate  bond, 
he  will  be  liable. ^  In  many  of  the  States  the  statute  reouires 
an  appraisement;'  and  such  value  so  ascertained  is  to  govern 
the  officer  in  fixing  the  amount  of  the  bond. 

>  Town  v.  Wilson,  3  Eng.  (Ark.)  464. 

'  Payne  o.  Bruton,  5  Eng.  (Ark.)  57;  Dennis  v.  Crittenden,  3  Hand.  (42  N. 
Y.)  544. 
'  Morgan  v.  Morgan,  31  Miss.  546. 
<  Deardorff  v.  Ulmer,  34  Ind.  353;  Schaffer  v.  Faldwesch,  16  Mo.  339. 

•  Kimball  v.  True,  34  Me.  88;  People,  etc.  v.  Core,  85  111.  248;  Roach  v. 
Moulton,  1  Chand.  (Wis.)  187;  Pomeroy  v.  Trimper,  8  Allen,  398;  Dear- 
dorff V.  Ulmer,  34  Ind.  353;  Murdock  v.  Will,  1  Dall.  341. 

•  People,  etc.  v.  Core,  85  111.  248. 

'  Watkins  v.  Page,  2  Wis.  92;  Caldwell  v.  West,  1  Zab.  (N.  J.)  411. 


360  PLEADING. 

§  660.  statement  of  value  in  affidavit;  how  far  binding. 
The  statements  in  the  affidavit  as  to  value  usually  bind  the 
plaintiff  in  any  subsequent  suit  between  the  same  parties,  on 
the  bond,  or  in  the  assessment  of  damages.  The  sworn  state- 
ment of  value  made  at  a  time  when  he  is  seeking  to  recover 
the  property  will  estop  him  from  asserting  a  different  one  at 
another  time.  The  defendant  is,  of  course,  in  no  way  bound 
by  it.i 

§  661.  Must  state  that  the  property  was  not  taken  for  any 
tax,  assessment  or  fine.  Another  provision,  common  to  the 
statutes  of  all  tlie  States  is,  the  affidavit  must  state  that  the 
property  was  not  taken  for  any  tax,  assessment  or  fine  levied 
by  virtue  of  any  law  of  the  State.  This  requirement  is  im- 
perative.* When  the  affidavit  states  that  the  property  had 
not  been  seized  for  any  legal  tax,  it  was  held  to  imply  that  it 
was  taken  for  a  tax  of  some  sort,  and  the  court  should  dismiss 
the  suit,  on  motion.*  When  it  stated  that  the  property  was 
not  taken  in  execution  for  any  tax,  assessment  or  fine,  tlie  court 
said  this  may  be  true,  and  still  the  property  may  have  been 
distrained,  and  the  affidavit  was  held  insufficient.^ 

§  662.  Or  upon  execution  or  attachment,  etc.  The  affidavit 
must  also  state  that  the  property  has  not  been  seized  by  virtue 
of  any  execution  or  attachment  against  the  goods  and  chattels 
of  the  plaintiff  liable  to  execution  or  attachment. ^  So,  where 
the  plaintiff  was  a  supervison  of  his  township,  authorized  by 
law  to  keep  and  preserve  the  books  and  papers  belonging  to 
his  office,  the  fact  that  the  property  was  not  legally  subject  to 
seizure  on  an  execution  or  for  a  tax  did  not  absolve  the  super- 
visor from  the  necessity  of  stating  in  his  affidavit  that  it  was 
not  so  taken.  The  requirements  of  the  statute  are  imperative, 
and  the  nature  of  the  property  makes  no  difference.**  There 
are  cases,  however,  where  the  rule  does  not  apply.  lu  Ver- 
mont and  Coimecticut  the  writ  was  formerly  employed  chiefly 

'  See  §  453,  and  the  cases  there  cited. 

2  Phenix  v.  Clark,  3  Mich.  327;  Mt.  Carbon,  etc.  v.  Andrews,  53  111.  183. 

8  McClaughry  v.  Cratzenberg,  39  111.  123. 

*  Campbell  o.  Head,  13  111.  126. 

*  Bridges  v.  Layman,  31  Ind.  385. 

*  Phenix  v.  Clark,  2  Mich.  327. 


MUST    CONTAIN    CORRECT   DESCRIPTION.  361 

to  recover  <^oods  seized  on  attachment.  The  proceedings  in 
such  cases,  however,  were  governed  by  local  statutes. 

§  663.  Or  upon  any  writ  of  replevin  against  the  plaintiff. 
In  some  States  the  statutes  require  the  affidavit  to  state  that 
the  property  for  which  the  suit  is  brought  has  not  been  taken 
upon  any  writ  of  replevin  or  order  for  delivery  in  such  action; 
and  it  may  be  said,  generally,  that  the  law  will  not  permit 
cross-replevin.  But  it  has  been  said  this  will  not  prevent  the 
plaintiff  from  having  this  action  upon  a  title  which  accrued 
to  him  after  the  seizure,  nor  in  cases  when  the  execution  was 
void.^ 

§  664.  Strict  compliance  with  this  condition  required.  An 
affidavit,  therefore,  which  stated  that  the  property  was  not 
taken  on  any  execution  or  judgment  against  the  plaintiff,  or 
any  other  mesne  or  final  process  whatsoever,  will  not  be  suffi- 
cient.2  A  strict  compliance  with  all  these  statutory  requisites 
is  essential;  the  object  of  the  law  being  to  prevent  the  em- 
ployment of  this  action  in  the  excepted  cases.  ^  The  law 
furnishes  other  means  to  control  wrongful  seizure  in  these 
cases,  but  will  not  permit  the  withdrawal  of  the  property 
pending  the  inquiry  as  to  the  seizure. 

§  665.  It  must  contain  a  correct  description  of  the  prop- 
erty. Amendments.  The  affidavit  should  contain  a  correct 
description  of  the  property  which  the  plaintiff  seeks  to  recover, 
as  it  will  be  shown  by  the  proof.^  And  although  amendments 
are  sometimes  permitted  to  correct  mistake,  and  in  the  fur- 
therance of  justice, 5  caution  in  the  first  instance  is  the  safe 
course.^     The  affidavit,  as  has  been  shown,  is  the  foundation 

1  Williams  v.  West,  2  Ohio  St.  89.  Contra,  see  Wilsoa  v.  Macklin,  7 
Neb.  51. 

2  Auld  V.  Kimberlin.  7  Kan.  601. 

2  Westenberger  v.  Whcaton,  8  Kan.  169. 

*  Taylor  v.  Riddle,  35  111.  567. 

6  Perkins  v.  Smith,  4  Blackf.  302;  Campbell  v.  Head,  13  111.  126;  Parks 
c.  Barkham,  1  Mich.  95;  Applewhite  «.  Allen,  8  Humph.  (Tenu.)  698;  Baker 
V.  Dubois,  32  Mich.  93;  Wilson  v.  Macklin,  7  Neb.  52. 

*  Affidavit  was  signed  by  plaintitt',  but  had  no  jurat  attached.  He  filed 
affidavit  that  he  did  swear  to  it.  Held,  the  court  might  have  permitted  it 
to  be  verified  nunc  pro  tunc.  Bergesh  v.  Keevil,  19  Mo.  128;  Anon,  4  How. 
(N.  Y.  Pr.)  290.    The  application  to  amend  should  be  made  before  the  de- 


362  PLEADING. 

of  tlie  suit.  It  is  a  statement  to  the  officer  upon  wliicli  tlie 
mandate  for  deliverj'^  issues.  The  description  in  the  writ  and 
in  the  subsequent  proceedings  are  based  upon  and  follow  the 
description  in  the  affidavit.  It  should  therefore  be  exact  in 
all  respects. 

§  666.  The  declaration.  Several  counts  joined.  It  has 
been  the  constant  practice  to  employ  as  many  counts  in  the 
declaration  as  the  pleader  deems  necessary  for  the  proper  pre- 
sentment of  his  case.  Counts  for  wrongful  taking  are  prop- 
erly joined  with  counts  for  the  detention.  Counts  claiming 
absolute  property  in  plaintiff  may  be  joined  with  counts  in 
which  he  asserts  a  limited  interest  only.^  But  the  averments 
of  the  declaration  with  respect  to  ownership  or  interest  of  the 
plaintiff  in  the  property  should  not  go  beyond  the  claim  in  the 
affidavit  and  writ.^ 

§  667.  Rights  of  parties  under  a  single  count.  Where  the 
declaration  contains  but  a  single  count  for  several  articles,  the 
plaintiff  may  recover  part  and  the  defendant  part,  the  same  as 
though  there  had  been  separate  counts;  each  is  entitled  to 
judgment  for  the  goods  which  he  recovered,  and  to  costs  so 
far  as  he  is  successful. ^  Under  a  count  char^ino^  wronofful 
detention  the  plaintiff  may  prove  a  wrongful  taking,  but  if 
the  charge  be  for  taking  it  is  not  supported  by  proof  of  a 
detention  merely. 

§  668.  Count  in  trover  for  goods  not  delivered.  In  some  of 
the  States,  in  addition  to  the  counts  in  replevin,  the  declaration 
may  also  contain  a  count  in  trover  for  such  goods  as  the  officer 
has  been  unable  to  find  and  deliver  upon  the  writ.^  Tiie 
count  in  trover,  however,  cannot  include  any  other  goods  than 

cision  upon  the  motion  to  quash,  the  writ.  If  it  is  quashed,  the  suit  is  no 
longer  pending  for  any  purpose,  except  to  assess  damages.  Campbell  v. 
TTo-u1.  18  111.  126;  Perkins  v.  Smith,  4  Blackf.  302;  Smith  v.  Emerson,  16 
Ind.  ft.'i.'S:  Eddy  ^^  Beal,  84  Ind.  161;  Kirkpatrick r.  Cooper.  77.  111.  505. 

•  Dickinson  v.  Noland,  2  Eng.  (Ark.)  25;  Cox  v.  Grace,  10  Ark.  87. 

»  Barnes  ij.  Tannehill,  7  Blackf.  605;  Cox  v.  Grace,  10  Ark.  87;  Nichola 
«.  Nichols,  10  Wend.  630. 

*  Seymour  v.  Billings,  12  Wend.  286. 

♦Nashville  Ins.  Co.  v.  Alexander,  10. Humph.  (Tenn.)  383;  Kan  v.  Bar- 
stow,  24  111.  580. 


FORM    OF   THE   DECLARATION-.  363 

tliose  described  in  the  writ,  and  wiiich  are  shown  bj  the 
officer's  return  not  to  have  been  delivered. ^ 

§  669.  Value  of  such  goods  usually  given  in  damages.  The 
general  practice  prevailing  in  most  of  the  States  permits  the 
plaintiff  to  recover  the  value  of  such  articles  as  are  not  deliv- 
ered as  damages.  The  count  in  trover  is  purely  statutory  and 
can  be  allowed  only  when  the  statute  so  provides. 

^  670.  Form  of  the  declaration;  wrongful  detention.  The 
declaration  should  be  drawn  to  meet  the  proof  which  will  be 
produced  at  the  hearing. 3  The  gist  of  the  action  is  the 
wrongful  detention.  The  plaintiff  must  allege  the  rio-ht  or 
title  in  himself  as  it  exists,  the  right  to  immediate  pos- 
session, and  the  detention  by  the  defendant. ^  This  alleo-a- 
tion  of  wrongful  detention  is  essential,  and  the  proof  to  sus- 
tain it  is  equally  essential.^  If  the  goods  were  restored  be- 
fore suit  brought,  the  plaintiff  cannot  succeed  on  this  action. 
An  allegation  that  the  defendant  was  about  to  take  possession ^ 
will  not  sustain  replevin. «  If  the  declaration  allege  that  the 
defendant  "detained,"  it  would  imply  that  he  had  detained 
them  but  that  were  delivered  to  the  plaintiff  on  the  writ. 
Under  this  charge  he  could  not  recover  damages  subsequent  to 
return  of  the  writ.  If  the  allegation  be  "he  detains,"  this 
implies  that  the  goods  are  still  detained,  and  the  plaintiff  may 
prove  and  recover  damages  down  to  the  time  of  the  trial,  and 
may  also  have  as  judgment  for  the  value,  in  case  the  o-oods  are 
not  delivered,  which  he  could  not  have  under  a  charo-e  of  "  he 
detained."'^  "When  the  facts  warrant  such  a  charge  it  is  best  to 
allege  a  "  wrongful  taking," ^  as  well  as  detention,  as  simplify- 
ing the  question  of  damages.     A  declaration  for  taking  (in  the 

'  Dart  V.  Horn,  20  111.  212. 
«  Newell  V.  Newell,  34  Miss.  385. 

2  Wilson  V.  Fuller,  9  Kan.  177;  Paul  v.  Luttrell,  1  Col.  317;  Tandle  c. 
Crane,  13  Kan.  347. 

*  Brown  v.  Holmes,  13  Kan.  482. 
»  Paul  V.  Luttrell,  1  Col.  317. 

*  Herron  v.  Hughes,  25  Cal.  555. 

'  Petre  v.  Duke,  Lutw.  360 ;  Potter  v.  North,  1  Wax.  Saurd.  347  6  n.  2 ;  Fox 
e.  Prickett,  5  Vroom,  (N.  J.)  13. 
«  Reynolds  v.  Lounsbury,  6  Hill,  534. 


3G4  PLEADING. 

*■''  cejpit^''')  should  allege  a  "wrongful"  taking,  but  an  omission 
in  this  respect  is  cured  by  verdict. ^  Proof  of  a  wrongful 
taking  is  not  admissible  under  an  allegation  of  wrongful  deten- 
tion unless  it  be  for  the  purpose  of  excusing  the  plaintiff  from 
the  necessity  of  proving  a  demand  and  refusal. ^  "Where  the 
action  is  against  two  or  more  for  a  joint  wrongful  taking  it 
may,  perhaps,  be  necessary  to  show  a  combination,  or  joint  act, 
in  order  to  secure  a  recovery  against  both,  but  it  need  not  be 
alleged  in  the  declaration. ^ 

§  671.  Allegation  of  wrongful  taking;  special  damages 
must  be  specially  alleged.  If  there  was  wrongful  taking, 
attended  with  any  acts  of  willful  wrong  or  insult,  the  declara- 
tion should  so  charge;  the  plaintiff  may  have  the  opportunity 
of  enhancing  his  claim  for  damages  by  means  of  such  proof."* 
If  there  are  any  special  causes  of  damages  the  plaintiff  should 
aver  them  in  his  declaration.  There  is  room  for  misunder- 
standing on  this  subject,  and  considerable  care  should  be  used 
to  avoid  error.  Damages  which  are  the  natural  and  expected 
result  of  the  defendant's  act,  that  is,  all  such  damages  as  the 
law  presumes  to  have  accrued  from  the  wi'ongful  act,  need 
not  be  specially  alleged. ^  But  the  real  or  actual  damages 
sometimes  would  not  fall  under  this  presumption,  and  in 
such  cases  they  must  be  specially  stated,  to  prevent  surprise.^ 
"Where  the  action  was  for  destroying  a  barn  the  plaintiff  could 
not  show  the  cost  of  boarding  his  horses  elsewhere  unless 
under  some  special  allegation.'  "When  the  action  was  trover 
for  a  note  which  the  defendant  wrongfully  claimed  to  hold  as 
a  valid  note  of  the  plaintiff',  under  a  special  allegation  the 
plaintiff   could   recover   such  damages   as    the  wrongful  act 

'  Reynolds  ti.  Lonnsbury,  6  Hill,  534.  See  Childs  'o.  Hart,  7  Barb.  370, 
■where  it  was  held  that  an  allegation  that  the  defendant  took  and  unjustly 
detained  would  imply  a  wrongful  taking. 

2  Eldred  v.  The  Occonto  Co.,  33  Wis.  141 ;  Newell  v.  Newell,  34  Miss.  385; 
Coit  V.  Waples,  1  Minn.  134. 

3  Herron  v.  Huglies,  25  Cal.  560. 

4  Newell  v.  Newell,  34  Miss.  385. 
'  Ch.  PI.  43S. 

«  De  Forest  ».  Lute,  16  Johns.  123;  Nunan  t.  City  and  Co.  of  San  Fran- 
Cisco,  38  Cal.  689;  Burrage  v.  Melson,  48  Miss.  230. 
'  Shaw  ».  Hoffman,  21  Mich.  155. 


ALLEGATION    OF   ■WRONGFUL   TAKING.  365 

ocoasioned.i  YicJcshurg  <&  Merden  R.  R.  Co.  v.  Ragsdale,  is 
a  case  where  this  question  is  ably  and  extensively  discussed. ^ 
Damages  beyond  the  value  of  the  property  may  be  given  when 
the  taking  was  accompanied  by  acts  of  outrage,  if  such  dam- 
ages were  the  natural  result  of  the  taking;  but  consequential 
damages,  not  the  natural  result  of  the  taking,  must  be  specially 
claimed  in  the  declaration. ^ 

§  672.  The  same.  Special  requirements.  It  must  allege 
that  the  goods  are  the  goods  and  chattels  of  the  plaintiff;  it 
is  not  sufficient  to  say  that  the  goods  were  taken  out  of  the 
plaintiff's  possession, *  or  to  charge  that  defendant  agreed  to 
transfer  the  property  to  plaintiff,^  or  to  simply  allege  that  the 
plaintiff  was  entitled  to  possession. ^  The  declaration  must 
expressly  allege  that  the  goods  are  the  property  of  the  plain- 
tiff.'' That  this  is  material  will  appear  when  it  is  considered 
that  the  defendant's  plea  is  only  to  put  in  issue  the  property 
in  the  plaintiff.^  In  Iowa,  it  appears  that  the  right  to  pos- 
session may  alone  be  put  in  issue  and  determined, ^  and  the 
averment  of  ownership  does  not  require  proof  of  absolute  title 
to  support  it,  but  a  right  of  present  dominion  or  control  over 
it,  is  sufficient.!**  Ownership  without  aright  to  immediate 
possession  will  not  enable  the  party  to  make  the  affidavit,  but 
right  of  present  exclusive  possession  will,  irrespective  of  the 
general  title.^^  The  evidence  of  title  must  not  be  set  up,  but 
the  fact  must  be  stated;  the  declaration  should  state  positive 

'  Park  V.  McDaniels,  37  Vt.  595. 

«  V.  &  M.  R.  R.  Co.  V.  Ragsdale,  46  Miss.  459. 

3  Schofield  v.  Ferrers,  46  Pa.  St.  438. 

•  Bond  V.  Mitchell,  3  Barb.  304;  Vandenburgh  v.  Van  Valkenburgh,  8 
Barb.  217;  Johnson  v.  Neale,  6  Allen,  (Mass.)  327;  Prosser  v.  Woodward, 
21  Wend.  205 ;  Robinson  v.  Calloway,  4  Ark.  101. 

»  Bailey  v.  Troxell,  43  Ind.  433. 

•  Patlison  v.  Adams,  7  Hill,  (N.  Y.)  126;  Webb  v.  Fox,  7  Durnf.  &  East. 
392. 

■>  Fontleroy  v.  Aylmer,  1  Ld.  Raym.  239. 
«  Bond  V.  Mitchell,  3  Barb.  304. 

•  Cassel  V.  Western  Stage  Co.,  12  Iowa,  47. 

"  Johnson  v.  Carnley,  6  Seld.  (N.  Y.)  570;  Sprague  v.  Clark,  41  Vt.  6; 
Cleaves  v.  Herbert,  61  111.  127. 
»  Williams  «.  West,  2  Ohio  St.  83. 


366  PLEADING. 

issuable  facts,  not  a  rehearsal  of  argument.*  An  allegation 
of  fraud  in  a  horse  trade  is  not  sufficient,  without  showing  a 
rescission  of  the  contract;  such  a  contract  may  be  voidable, 
but  until  avoided  is  valid.'  An  allegation  that  the  plaintiff 
on  a  certain  day  owned  and  possessed  certain  property,  and 
that  the  defendant  on  that  day  took  and  wrongfully  detained 
it,  is  sufficient.'  It  must  show  a  right  to  the  property  in  dis- 
pute in  the  plaintiff  at  the  time  suit  was  begun. ^ 

§  673.  The  same.  Allegation  as  to  time  and  place.  It 
should  state  that  the  defendant,  upon  a  time  stated,  which 
must  be  prior  to  the  issuing  of  the  writ,^  at  a  place  which 
must  be  indicated,  such  as  within  a  certain  village  or  town,*' 
wrongfully  took,  and  unjustly  detains;'  or,  if  the  action  be 
for  detention  only,  tlie  count  may  state  that  the  defendant 
took,  and  "unjustly  detains  "^  the  plaintiff's  goods.' 

§  674:.  The  same.  Formerly  the  plaintiff  was  required  to 
state  the  close.  ^'^     This  was  because  distress  could  only  be 

'  Fidler  v.  Delavan,  20  Wend.  57. 

»  McCoy  V.  Reck,  50  Ind.  283. 

8  Adams  v.  Coiriston,  7  Minn.  456;  Hurd  v.  Simonton,  10  Minn.  423. 

*  Loomis  v.  Youle,  1  Minn.  175. 

'  It  is  a  good  defense  that  the  writ  issued  before  the  cause  of  action 
accrued.  Wingate  v.  Smith,  20  Me.  287.  Tlie  date  of  the  writ  is  not  con- 
clusive as  to  the  time  when  the  suit  was  begun.  Federlien  v.  Smith,  3 
Allen,  119. 

«  Johnson  ».  "Woolyer,  1  Stra.  507;  Muck  v.  Folkroad,  1  Browne,  (Pa.)  60; 
Gardner  v.  Huraplirey,  10  Johns.  53;  Williams  ?;.  Welch,  5  Wend.  290. 
The  action  is  local  to  the  place  of  taking.  Sleeper  v.  Osgood,  50  N.  H. 
335.  And  it  has  been  said  a  change  of  venue  is  not  usually  granted. 
Atkinson  v.  Holcomb,  4  Cow.  45. 

">  Reynolds  v.  Lounsbury,  6  Hill.  531.    Compare  Childs  v.  Harl,  7  Barb..370. 

8  Childs  V.  Hart,  7  Barb.  (N.  Y.)  370;  Hurd  v.  Simonton,  10  Minn.  423; 
Adams  v.  Corriston,  7  Minn.  456;  Coit  v.  Waples,  1  Minn.  134;  Nichols  v. 
Nichols,  10  Wend.  630. 

*  Vandenburgh  v.  Van  Valkenburgh,  8  Barb.  217;  Pattison  v.  Adams.  7 
Hill,  126;  Bond  v.  Mitchell,  3  Barb.  304;  Robinson  v.  Calloway,  4  Ark. 
101.  Goods  which  the  plaintiff  was  entitled  to  the  possession  of,  substan- 
tially sufficient.  Prosser  v.  Woodward,  21  Wend.  205;  Stickney  v.  Smith, 
5  Minn.  486.  It  is  sufficient  to  allege  that  the  defendant  took  the  goods 
of  the  plaintilf  and  unjustly  detiins  the  same.  Childs  v.  Hart,  7  Barb. 
370;  Simmons  v.  Lyons,  3  Jones  &  Spencer,  (N.  Y.)  554;  Bond  v.  Jilitchell, 
3  Barb.  304. 

'<*  Gardner  v.  Humphrey,  10  Johns.  53. 


EVIDENCE    OF   TITLE   NOT   NECESSARY    TO   BE    STATED.        367 

made  upon  the  land  out  of  which  the  writ  issued. i  This  rule 
Ihas  been  so  changed  that  in  cases  other  than  for  a  distress  for 
rent,  a  statement  of  the  town  will  sufBce.2  So,  when  the 
declaration  stated  that  the  property  was  taken  from  the  dwell- 
ing of  the  plaintiff,  on  Gay  street,  proof  that  the  taking  was 
on  Gay  street,  sufficed.' 

§  675.  Averment  of  wrongful  detention  essential.  What- 
ever may  be  the  facts  in  the  case  concerning  the  wrongful 
taking,  and  whatever  be  the  allegations  in  the  declaration  upon 
that  question,  it  is  imperative  that  the  declaration  contain  an 
averment  of  a  wrongful  detention  by  the  defendant  at  the 
time  the  suit  was  begun;  without  this  the  plaintiff  does  not 
state  a  cause  of  action.'*  This  question  was  squarely  pre- 
sented in  Colorado,  where  the  plaintiff  declared  for  the  taking, 
and  tlie  defendant  pleaded  non  detlnuet,  and  the  court  held 
the  issue  material. ^  A  very  similar  rule  was  followed  in 
Kansas.  6  As  an  omission  to  charge  a  wrongful  detention, 
which  is  the  gist  of  the  action,  is  therefore  fatal.' 

§  676.  Evidence  of  title  not  necessary  to  be  stated.  The 
plaintiff  is  not  at  liberty  to  state  the  evidence  of  his  title,  but 
must  simply  aver  title  by  direct  and  traversable  averment, ^  In 
support  of  this  averment,  proof  that  the  plaintiff  was  in  actual 
undisputed  possession,  claiming  to  own  the  goods,  is  sufficient 

'  Steph.  Nisi  Prius,  vol.  2,  p.  1333. 

2  Muck  V.  Folkroad,  1  Browne,  (Pa.)  60;  Ely  v.  Ehle,  8  Comst.  (N.  Y.) 
510;  Williams  v.  Welch,  5  Wend.  290. 

s  Faget  V.  Brayton,  2  Har.  &  J.  (Md.)  350. 

*  Childs  V.  Hart,  7  Barb.  370;  Hurd  v.  Simonton,  10  Minn.  423;  Adams 
V.  Corriston,  7  Minn.  456;  Colt  v.  Waples,  1  Minn.  134. 

"  Paul  V.  Luttrell,  1  Col.  318. 

«  Wilson  V.  Fuller,  9  Kan.  177. 

'  Draper  v.  Ellis,  12  Iowa,  316;  Brown  v.  Holmes,  13  Kan.  483;  Leroy  v. 
McCounell,  8  Kan.  273. 

8  Bond  V.  Michell,  3  Barb.  304 ;  Prosser  v.  Woodward,  21  Wend.  205 ;  Rob- 
inson  ®.  Calloway,  4  Ark.  101;  Alwood  v.  Ruckman,  21  111.  200;  Pattison 
V.  Adams,  7  Hill.  (N.  Y.)  126 ;  Vandenburgh  ®.  Van  Valkenburgh, 8  Barb.  217 ; 
Martin  «,  Watson,  8  Wis.  315;  Johnson  v.  Neale,  6  Allen,  (Mass.)  227; 
Vogle  V.  Badcock,  1  Abb.  Pr.  (N.  Y.)  176.  See  Ice  v.  Lockridge,  21  Tex. 
461.  It  would  seem  that  in  Iowa,  where  a  party  claims  under  chattel  mort- 
gage, that  the  declaration  should  contain  a  copy  of  the  mortgage  and  notes. 
Smith  V.  McLean,  24  Iowa,  322. 


36  S  PLEADING. 

to  entitle  liiin  to  judgment,  unless  abetter  title  be  shown.* 
When  the  party  claims  and  undertakes  to  show  title,  and  shows 
possession  only  as  an  incident  to  title,  evidence  upon  the 
question  of  title  must  control.^ 

§  677.  The  same.  An  averment  of  right  of  possession  suf- 
ficient. The  allegation  of  ownership,  as  has  been  shown,  does 
not  require  for  its  support  proof  of  ownership  of  absolute 
title. 3  Where  the  complainant  alleged  that  the  plaintiffs  were 
possessed  of  the  goods,  described  "  as  of  their  own  proper 
goods,"  it  was  said  to  be  sufficient."* 

§678.  The  same.  Observations.  Title  by  possession,  with- 
out other  right  to  the  property,  will,  where  the  possession  is 
rightful,  be  sufficient  to  sustain  replevin  as  against  a  wrong- 
doer; such  title  being  regarded  as  sufficient  to  hold  the  prop- 
erty against  all  persons  not  showing  a  better  title,  and  to 
recover  it  from  one  who  wrongfully  seizes  it.^     The  possession 

*  Ely  V.  Ehle,  3  Comst.  507.  When  the  plaintiff  has  the  right  to  the  pos- 
session, and  can  sustain  trespass,  replevin  will  lie.  See,  also,  Dunham  v. 
Wyckoff,  3  Wend.  280;  Stickney  v.  Smith,  5  Minn.  486;  Marshall  v.  Davis, 

1  Wend.  109;  Hunter  v.  Hudson  Riv.  Iron  Co.,  20  Barb.  493;  Brockway  v. 
Burnap,  12  Barb.  347;  Brockway  v.  Burnap,  16  Barb.  309;  Hendricks  «. 
Decker,  35  Barb.  298.  One  who  has  the  general  or  special  property  in  tho 
goods,  accompanied  by  actual  or  constructive  possession,  can  maintain 
replevin.  Wilson  v.  Royston,  3  Ark.  315.  Party  without  title,  except  to 
right  of  possession,  may  replevy  against  a  wrong-doer.  Prater  v.  Frazier, 
11  Ark.  249. 

«  Hatch  V.  Fowler,  28  Mich.  210. 
'  See  ante,  §  96. 

*  Stickney  v.  Smith,  5  Minn.  486.  See  Prosser  v.  Woodward,  21  Wend 
206;  Marshall  v.  Davis,  1  Wend.  109;  Hunter  v.  Hudson  Riv.  etc.,  20  Barb 
493.  When  the  plaintiff  has  the  right  to  possession,  and  can  sustain  trcs 
pass,  replevin  is  a  concurrent  remedy.  Dunham  v.  Wyckhoff,  3  Wend.  280 
Brockway  v.  Burnap,  12  Barb.  347;  Brockway  v.  Burnap,  16  Barb.  309; 
Hendricks  v.  Decker,  35  Barb.  298;  Rucker  v.  Donovan,  13  Kan.  251.  One 
who  has  a  general  or  special  property  in  the  goods,  accompanied  by  pos- 
session, actual  or  constructive,  can  maintain  the  action.     Wilson  v.  Royston, 

2  Ark.  315.  Party  without  title,  if  entitled  to  the  possession,  may  sustain 
the  action  against  a  wrong-doer.    Prater  v.  Frazier,  11  Ark.  249. 

5  Moorman  «.  Quick,  20  Ind.  68;  Miller  ®.  Jones,  Admr.,  26  Ala.  260; 
Shorao  V.  Caldwell,  21  Ala.  448 ;  Prater  v.  Frazier,  6  Eng.  (Ark.)  249.  Proof 
of  title  recently  before  the  taking  would  raise  a  presumption  of  continued 
ownership,  and  unless  contradicted,  would  be  sufficient.  Smith  v.  Graves, 
25  Ark.  461.    See,  also,  Tison's  Admr.  v.  Bowden,   8  Fla.  69.    A  mere 


\ 

■WHERE   THE    COMI'LAINT    FOLLOWS    THE    STATXTTE.  369 

must  be  a  lawful  one,  acquired  without  force  or  fraud.  The 
taker  up  of  au  estraj,  without  any  proceeding  under  the  law, 
is  a  trespasser.  His  possession  is  not  sufficient.  But  if  one 
take  up  an  estraj',  and  duly  comply  with  the  law  in  such  cases, 
his  possession  is  rightful. i 

§  679.  Where  the  complaint  follows  the  statute.  "Where  the 
complaint  follows  the  form  laid  down  in  the  code  for  the 
recovery  of  chattels  in  specie,  it  must  be  understood  as  assert- 
ing such  a  title  and  claiming  such  an  interest  in  the  goods  as 
may  be  recovered  in  that  form  of  action. 2  So  where  the  stat- 
ute provides  that  the  plea  of  non  cepit  shall  put  in  issue  the 
property  in  the  plaintiff,  as  well  as  the  taking,  the  plaintiff 
may  have  a  return  of  the  goods  under  that  plea.  The  charges; 
in  the  declaration  must  follow  the  writ.  Tims  when  the  writ 
charges  an  unlawful  detention,  and  the  declaration  an  unlaw- 
ful taking,  there  will  a  variance.  ^  The  description  of  the 
property  should  be  the  same  in  the  affidavit,  writ  and  declara- 
tion; each  must  describe  the  property  as  it  will  appear  in  the 
proof.*  When  the  complaint  described  only  part  of  the  prop- 
erty in  the  affidavit,  and  it  appeared  that  the  other  part  liad 
been  taken  from  the  defendant  on  an  attachment^  before  the 

receiptor,  who  has  received  the  goods  from  an  officer  for  safekeeping,  can- 
not sustain  replevin.  Warren  v.  Lcland,  9  Mass.  265;  Ludden  v.  Leavitt,  9 
Mass.  104;  Dillenback  c.  Jerome,  7  Cow.  294;  Norton  v.  The  People,  8  Cow. 
137.  But,  see,  Miller  v.  Adsit,  16  Wend.  335;  Thayer  v.  Hutchinson,  13  Vt 
504;  Mitchell  v.  Hinman,  8  Wend.  668.  So  of  a  servant,  who  has  only  a 
right  to  possession  by  virtue  of  a  delivery  from  his  master,  which  the  latter 
may  put  an  end  to  at  any  time;  but  a  bailee  may  sustain  the  action. 
Harris  v.  Smith,  3  S.  &  R  23;  Brownell  v.  Manchester,  1  Pick.  232;  Stanley 
B.  Gaylord,  1  Cush.  536;  Bond  v.  Paddelford,  13  Mass.  395;  Weld  v.  Hadlev, 
1  N.  H.  298. 

1  Bayless  v.  Lefaivre,  37  Mo.  122. 

«  Pickens  v.  Oliver,  29  Ala.  528,  See  Halleck  v.  Mixer,  16  Cal.  574; 
Smith  V.  Montgomery,  5  Iowa,  370. 

2  Barnes  v.  Tannehill,  7  Blackf  604;  Nichols  v.  Nichols,  10  Wend.  630. 

*  Sncdeker  v.  Quick.  6  Halst.  (N.  J.)  179;  Cronly  ».  Brown,  12  Wend.  271 ; 
Stevens  v.  Osman,  1  Mich.  92;  Stevison  v.  Earnest,  80  111.  517. 

'  Kerrigan  v.  Ray,  10  How.  Pr.  Rep.  213.  When  the  declaration  was  for 
two  bay  horses,  and  the  proof  showed  thai  one  was  a  sorrel,  the  variance 
was  fatal.  Taylor  v.  Riddle,  35  111.  567.  See  Root  v.  Woodruff,  6  Hill,  (N. 
Y.)  418. 

24: 


370  PLEADING. 

-writ  could  be  served,  it  was  allowed  to  stand.  Parties  may 
litigate,  however,  concerning  property  not  included  in  the 
writ  when  they  agree  to  do  so.  Thus,  where  property  not  em- 
braced in  the  writ  was  described  in  the  pleading,  and  the 
parties  stipulated  that  the  right  thereto  should  be  determined 
in  the  suit,  it  was  regarded  as  sufficient  to  give  the  court 
jurisdiction.  1 

§  680.  Declaration  should  state  value  of  goods.  The  declara- 
tion should  state  the  value  of  the  goods,  though  the  statement 
of  the  value  of  the  whole,  and  not  of  each  article,  has  been 
held  sufficient. 2  The  statement  of  value  is  but  a  form  of  plead- 
ing. Even  where  it  is  niot  denied  in  the  pleadings,  it  is  not 
admitted,  nor  is  the  defendant  precluded  from  showing  the 
true  value  to  be  in  excess  of  the  sum  stated  by  the  plaintiff.^ 

§  681.  Averment  of  demand.  The  declaration  at  common 
law  need  not  aver  a  demand.  In  Wisconsin,  it  need  not  aver 
demand  and  refusal.  Under  a  charge  of  wrongful  detention, 
plaintiff  may  prove  a  demand  and  refusal,  or  such  a  taking  as 
will  obviate  the  necessity  of  a  demand.*  Local  laws  will  con- 
trol this  question,  and  no  general  rule  can  be  stated. 

§682.  Must  claim  damages.  The  declaration  must  claim 
damages.  An  omission  in  this  respect  is  a  defect  which  has 
been  held  fatal. ^  The  general  claim  of  damages  at  the  con- 
clusion of  the  declaration  will  be  sufficient  to  entitle  the  party 
to  all  such  damages  as  are  the  natural  and  immediate  conse- 
quence of  the  defendant's  acts,  of  which  the  declaration  com- 
plains. Thus  the  plaintiff  may  prove  any  depreciation  of  the 
goods  arising  from   any  natural  and  expected  causes,  while 

>  Sanger  v.  Kinkade,  16  111.  44. 

8  Root  V.  Woodruff,  6  Hill,  (N.  Y.)  418;  Gillies  v.  Wofford,  26  Tex.  76; 
Ward  V.  Masterson,  10  Kan.  78;  Woodruff  v.  Cook,  25  Barb.  505. 

3  Chicago  &  8.  W.  Ry.  Co.  v.  N.  W.  Tacket  Co.,  38  Iowa.  377;  Bailey  v. 
Ellis,  21  Ark.  489.  But,  see  TuUey  v.  Harloe,  35  Cal.  306.  The  objection 
that  the  complaint  does  not  allege  the  value  is  cured  after  verdict  for  dam- 
ages for  the  detention.  Bales  v.  Scott,  36  Ind.  203.  See  Hawkins  v.  Johnson, 
3  Blackf.  40. 

•»  Oleson  V.  Merrill,  20  Wis.  462.  But  in  some  States  such  averments  are 
necessary.  See  Campbell  v.  Jones,  38  Cal.  507;  Hurd  v.  Simonton,  10 
Minn.  423. 

'  Faget  V.  Brayton,  2  H.  &  J.  (Md.)  350. 


MUST   CLAIM   DAMAGES.  371 

tliey  were  in  the  defendant's  bands,  i  Special  damages  must 
be  specially  claimed. 2  In  an  action  to  recover  possession  of  a 
mare,  the  damage  resulting  from  a  loss  of  flesb,  and  detention 
during  the  breeding  season,  should  be  specially  alleged.* 

>  Young  V.  Willet,  8  Bosw.  (N.  Y.)  486. 
*  Damron  v.  Koach,  4  Humph.  (Tean.)  134. 
«  Stevenson  v.  bmith,  28  Cal.  103. 


373. 


PLEADING    BY    DEFENDANT. 


CHAPTER   XXI. 


PLEADING  BY  DEFENDANT. 


Section. 
General  rules;  each  defendant 

may  plead  separately  .  .  683 
Separate  defenses  .  .  .  684 
Plea  of  title;   must  show  title 

when  the  suit  began       .        .  685 
Plea  to  title  or  right  of  posses- 
sion   686 

Plea  by  an  officer^     .        .        .687 
Plea  of  property  in  defendant  .  688 
Propeity  in  third  person   .        .  689 
Form  of  plea  does  not  amount 
to  an  admission  of  the  taking  690 


Section. 
.  691 


The  same 

The  same.    Right  of  defendant 

to  a  return  under  this  plea     .  693 
Observations  upon  this  rule      .  693 

The  same 694 

The  same.  Illustrations  .  .  695 
Tlie  traverse  .  .  .  .696 
Exceptions  to  this  rule  .  .  697 
Replication  ....  698 
Surrender  to  a  third  party  by 

order  of  court        .        .        .  699 


§  683.  Greneral  rules ;  each  defendant  may  plead  separately. 
The  action  of  replevin  is  in  the  nature  of  a  tort.  The  defend- 
ant, or  if  there  be  more  than  one,  each  may  set  up  as  many 
separate  defenses  as  he  judges  necessary  for  his  protection. 
It  was  said  by  the  Supreme  Court  of  Kentucky  in  1838,  that 
the  defendant  in  replevin  had  no  legal  right  to  file  more  than 
one  plea.  Formerly  special  pleas  were  pleaded  under  leave  of 
the  court,  but  tlie  leave  was  always  granted  as  a  matter  of 
course;  and  now  the  defendant  may,  as  a  matter  of  right 
under  the  general  rules  of  practice,  plead  as  many  separate 
proper  defenses  as  are  necessary. ^  Proof  of  one  sufficient 
defense,  without  reference  to  the  others,  will  constitute  a  bar 
to  the  action. 2     Where  the  action  is  against  two,  each  may 

1  Gaines  v.  Tibbs,  6  Dana,  147. 

'Rogers  v.  Arnold,  13  Wend.  34;  Mt.  Carbon,  etc.  v.  Andrews,  53  111.  184; 
Amos  V.  Sinnott,  4  Scam.  441 ;  Chambers  v.  Hunt,  18  N.  J.  339.  See  and 
compare  Gaines  v.  Tibbs,  6  Dana,  (Ky.)  146;  Holton  v.  Lewis,  1  McCord, 
(S.  C.)  13;  Knowles  v.  Lord,  4  Whart.  (Pa)  500. 


PLEA    OF    TITLE.  373 

claim  title  to  the  property  in  himself,^  or  each  and  both  may 
plead  any  proper  matter  without  reference  to  the  statement  in 
the  pleading  of  the  other.  2  It  should  be  observed  that  where 
there  are  two  defendants,  they  must  plead  the  same  facts  in 
justification,  or  they  cannot  have  return.  For  example,  if 
two  defendants  set  up  separate  pleas  justifying  the  taking  and 
demanding  a  return,  and  they  should  both  be  true,  the  court 
could  not  adjudge  a  return,  though  each  might  plead  non 
ceplt  to  part  of  the  justifying  the  taking  as  to  other  difierent, 
separate  parts,  and  have  judgment  for  a  return  of  that  part. 
But  if  a  joint  return  is  wanted,  the  defendants  must  plead  or 
avow  the  same  facts  in  justification;''  but  upon  a  joint  plea  of 
property  in  one  of  two  defendants,  the  return  may  be  adjudged 
to  both. 4 

§  Q%4:.  Separate  defenses.  It  is  not  material  that  separate 
pleas  should  be  consistent  with  each  other;  each  one  is  re- 
garded as  a  separate  defense,  in  no  way  dependent  upon  any 
other,  but  each  must  be  consistent  with  itself.  Thus  non 
cepit,  which  denies  the  taking,  may  be  pleaded  with  an  avowry 
which  acknowledges  and  justifies  the  taking;  or  non  cepit  and 
plea  of  property  in  defendant,  or  in  a  stranger;  or  pleas  of 
joint  property  in  the  plaintiff  and  the  defendant  may,  any  of 
them,  be  joined  with  any  or  all  of  the  others  without  objec- 
tion, and  the  party  pleading  may  prove  any  one  of  these 
defenses  without  the  others. ^ 

§  685.  Plea  of  title ;  must  show  title  when  the  suit  began. 
Pleas  which  set  up  title  in  the  defendant,  or  which  rely  upon 
title  in  any  other  person  than  the  plaintiff,  must  allege  it  as 
existing  at  the  time  suit  was  begun.  A  plea  claiming  title 
on  a  certain  day  before  the  commencement  of  the  suit  is  bad.^ 

»  Boyd  V.  McAdams,  16  111.  146. 

9  Martin  v  Ray,  1  Blackf.  291. 

8  Gaines  v.  Tibbs,  6  Dana,  (Ky.)  144. 

«  Wliite  V.  Lloyd,  3  Blackf.  390.     Compare  Gotloff  ».  Henry,  14  111.  384. 

»  Shuter  v.  Page,  11  Johns.  196;  Simpson  v.  McFarland,  18  Pick.  433; 
"Whitwell  t).  Wells,  34  Pick.  27;  Parsley  v.  Huston,  3  Blackf.  348;  Har- 
wood  0.  Smethurst,  5  Dutch,  (39  N.  J.)  195 ;  Edelen  0.  Thompson,  2  Har.  & 
G.  (Md.)  33. 

«  Patton  V.  Hamner,  28  Ala.  618. 


374  PLEADING    BY   DEFENDANT. 

The  plea  must  also  contain  a  direct  and  issuable  statement  of 
the  facts  on  which  the  defendant  relies.  It  must  not  state  the 
evidence  by  which  facts  are  proved.  If  the  defendant  relies 
on  title,  he  must  state  that  he  is  and  was  owner,  not  that  he 
bought  it.i 

§  686.  Plea  to  title,  or  right  of  possession.  "Where  the 
defendant  desires  to  put  the  title  in  issue  he  must  do  so  by 
plea  of  property  in  himself  or  in  a  stranger,  accompanied  by 
a  traverse  of  the  plaintiif 's  rights  and  a  denial  of  the  taking.^ 
Under  such  pleas  the  defendant  may  prove  title  in  himself,  no 
matter  how  derived,'  or  anything  that  shows  that  at  the  time 
the  suit  was  begun  he  had  the  right  to  possession  as  against 
the  plaintiff.'*  Plea  of  property  in  defendant  must  be  under- 
stood to  be  a  claim  to  all  the  property,  or  entire  property  in 
the  goods,  and  under  such  a  plea  proof  of  property  in  the 
defendant  and  another  is  not  admissible. ^  When  the  plea 
averred  that  at  the  time  of  the  supposed  taking  the  defendant 
was,  and  now  is,  the  lawful  owner,  denying  the  plaintiff's  title, 
it  was  regarded  in  substance  as  an  admission  of  the  taking  and 
detention,  with  an  avowry  of  title  in  defendant."  But  a  plea 
of  non  cepit^  as  we  shall  see,  admits  the  property  to  be  in  the 
plaintiff,''  and  denies  the  taking  only. 

§  687.  Plea  by  an  officer.  When  an  officer  defends  the 
seizure  of  goods  by  virtue  of  process  it  need  not  be  set  out, 
but  must  be  pleaded  with  sufficient  certainty  to  show  that  it 
authorized  the  seizure.^  Where  the  officer  justifies  the  seizure 
of  goods  uyjon  fi.  fa.,  he  must  produce  a  valid  judgment  as 
well  as  execution.  The  execution  may  be  a  defense  to  the  offi- 
cer when  sued  for  trespass,  but  if  he  claim  property  in  the 

»  McTaggart  v.  Rose,  14  Ind.  230;  Martin  v.  Watson,  8  Wis.  315;  Robin- 
son V.  Calloway,  4  Ark.  101. 

« Mackinley  v.  M'Gregor,  3  Whart.  368 ;  Rowland  v.  Mann,  6  Ired.  (N. 
C.)  38. 

»  O'Connor  v.  Union  Line,  31  111.  236. 

*  Dixon  v.  Thatcher,  14  Ark.  141 ;  Van  Namee  v.  Bradley,  69  111.  300. 
»  Mcllvaine  v.  Holland,  5  Har.  (Del.)  10. 

•  Chase  v.  Allen,  5  Allen,  599. 

'  Van  Namee  v.  Bradley,  69  111.  300. 

»  Mt.  Carbon,  etc.  v.  Andrews,  53  111.  184. 


PLEA    OF    PROPERTY    IN    DEFENDANT.  375 

goods  as  against  a  stranger  he  mnst  produce  a  valid  judgment 
in  sup23ort  of  his  execution.^  But  the  prior  possession  of  the 
officer  under  his  writ  may  be  sufficient  to  sustain  trover  or 
trespass  against  a  stranger  who  takes  the  goods,^  and  upon  the 
authority  of  this  case  a  plea  setting  up  his  prior  possession 
would  be  sufficient  to  entitle  the  sheriff  to  a  return  of  the 
goods  taken  on  execution  without  showing  the  judgment. ^  If 
the  process  be  mesne,  as,  for  example,  an  attachment,  a  plea 
setting  up  the  writ  will  be  sufficient  without  showing  the 
grounds  upon  which  it  issued.*  But  it  ought  to  aver  a  debt 
due  from  the  defendant  to  the  plaintiff. 

§  688.  Plea  of  property  in  defendant.  The  defendant  may 
always  set  up  ownership  of  the  pro2:>erty  as  a  defense.  The 
usual  form  of  this  plea  is  to  deny  the  plaintiff's  right  to  the 
property,  and  assert  ownership  and  a  right  to  possession  in 
himself.  If  the  defendant  is  successful  upon  this  issue  the 
judgment  must  be  for  a  return  of  the  goods,  when  thej^  have 
been  delivered  to  the  plaintiff  upon  the  writ,  and  for  damages 
and  costs. 5  The  action,  however,  is  a  possessory  one,  and  either 
party  may  claim  and  show  a  right  to  the  possession  at  the 
time  the  suit  was  begun.  Upon  such  showing  he  may  recover 
even  as  against  the  owner, ^  An  averment  and  proof  of  title, 
no  matter  how  derived,  will  not  constitute  a  defense  where  the 
plaintiff  claims  and  shown  himself  entitled  to  possession.' 
Where  there  are  two  defendants  and  one  of  them  owns,  or  has 
a  right  to  possession  of  the  property,  they  may  so  plead;  and 
a  judgment  for  a  return  will  be  sustained  whether  the  other 
has  any  right  or  not.* 

'  High  V.  Wilson,  2  Johns.  45.    See  and  compare  Holmes  v.  Nuncaster, 
12  Johns.  395. 
2  Barker  v.  Miller,  6  Johns.  199. 
2  Thayer  v.  Hutchinson,  13  Vt.  503. 

*  McGraw  v.  Welch,  2  Col.  288.     See  Mann  v.  Perkins,  4  Blackf.  271. 

•  Rogers  v.  Arnold.  12  Wend.  34;  Quincy  v.  Hall,  1  Pick.  359. 

'  Darter  v.  Brown,  48  Ind.  395;  Hecron  v.  Beckwith,  1  Wis.  20;  Hunt  o. 
Chambers,  1  Zab.  (21  N.  J.)  624;  Seldner  v.  Smith,  40  Md.  603;  Smith  v. 
Williamson,  1  Har.  &  J.  (Md.)  147. 

'  Corbitt  V.  Heisey,  15  Iowa,  296. 

«  White  V.  Lloyd,  3  Blackf.  390;  Gotloff  v.  Henry,  14  111.  385;  Waldman 
V.  Broder,  10  Cal.  379. 


376 


PLEADING    BY   DEFENDANT. 


§  689.  Property  in  third  person.  Plea  of  property  in  a 
third  person,  a  stranger  to  the  suit,  with  a  traverse  of  plain- 
tiff's right,  ^.s  always  good.^  This  plea  is  permitted  on  the 
•obvious  j^rinciple  that  the  plaintiff  must  show  title  or  right  of 
possession  in  himself.  The  burden  of  proof  is  on  him,  and 
the  object  of  the  plea  is  to  show  title  out  of  the  jilaintiff. 
Non  cepit,  as  we  shall  see,  admits  the  title  to  be  in  the  plain- 
tiff; it  simply  denies  the  taking,  and  to  enable  the  defendant 
to  contest  the  plaintifi''s  title,  and  ask  a  return  of  the  goods, 
he  must  plead  property  in  himself  or  some  other  person,  and 
deny  the  plaintiff's  right  as  well  to  property  as  to  possession. 
The  traverse  or  denial  of  the  plaintiff's  right  is  the  material 
•part  of  the  plea;  the  allegation  of  title  in  another  is  merely 
inducement.2 

§  690.  Form  of  the  plea ;  does  not  admit  the  taking.  This 
plea  must  aver  the  goods  to  be  the  property  of  some  third 
person,  who  must  be  named ;3  or,  perhaps  it  may  be  in  a  ficti- 
tious person, 4  and  should  contain  traverse  or  denial  of  the 
plaintiff's  right,  which  is  the  material  part  of  the  plea.  The 
plaintiff  would  not  be  permitted  to  reply,  denying  the  prop- 
erty in  such  third  person,  as  that  would  present  an  immaterial 
issue.  This  plea,  even  alone,  does  not  amount  to  an  admission 
of  the  taking,  nor  does  it  shift  the  burden  of  proof  to  the 
defendant.  It  denies  that  the  plaintiff  had  the  right  to  deliv- 
erance, and  npon  this  issue  the  burden  of  proof  is  npon  the 
plaintiff.  5     But  if  the  plaintiff  show,  under  such  plea,  that 

I  Hall  t).  Henline,  9  Ind.  256;  Parker  v.  Mellor,  1  Ld.  Kaym.  217;  John- 
son  V.  Carnley,  6  Seld.  (N.  Y.)  576 ;  McCurry  v.  Hooper,  12  Ala.  823 ;  Ingra- 
ham  v.  Hammond,  1  Hill.  353;  Harrison  v.  M'Intosh,  1  John.  380;  Prosser 
V.  Woodward,  21  Wend.  209 ;  Scliermerhorn  v.  Van  Valkeuburgh,  11  Johns. 
529;  Martin  v.  Ray,  1  Blackf.  (Ind.)  292;  Noble  v.  Epperly,  6  Ind.  415, 
Schulenberg  v.  Harriman,  21  Wall.  (U.  S)  44;  Shuter  v.  Page,  11  John.  196; 
Marsh  v.  Pier,  4  Rawle,  283;  Cullum  v.  Bevans,  6  Har.  &  J.  (Md.)  469; 
Thompson  v.  Sweetser,  43  Ind.  312;  Loomis  v.  Youle,  1  Minn.  175;  Scott  v. 
Hughes,  9  B.  Mon.  (Ky.)  104. 

s  Rogers  «.  Arnold,  12  Wend.  33;  Chambers  v.  Hunt,  18  N.  J.  L.  339; 
Chambers  v.  Hunt,  22  K  J.  L.  553;  Van  Naince  v.  Bradley,  69  111.  300. 

•^  A)istice  V.  Holme-s,  o  Denio,  344;  Lamping  v.  Payne,  83  111.  463. 

*  Anderson  v.  Dunn,  19  Ark.  650. 

0  Crosse  v.  Bilson,  2  Ld.  Raym.  1016;  Marsh  v.  Pier,  4  Rawle.  282;  Mac. 


FORM   OF   THE   PLEA. 


877 


the  defendant  had  possession  of  liis  property,  the  burden  of 
proof  would  be  shifted  on  tlie  defendant  to  show  how  lie  came 
by  it.i  If  the  plea  merely  assert  title  in  a  strantrer,  without 
a  traverse  of  the  plaintiff 's  right,  the  burden  of  proof  would 
be  on  the  defendant  to  show  the  title  as  pleaded. 

§  691.  The  same.  Where  the  defendant  pleads  property  in 
a  third  person  named,  he  cannot,  upon  the  trial,  be  permitted 
to  show  title  in  another  person  not  named.  He  has  no  right 
to  mislead  the  plaintiff  by  pleading  one  state  of  facts  and 
attempting  to  prove  another. ^  It  is  not  necessary  that  such 
third  person  should  be  a  party  to  the  suit;^  and  neither  the 
plea  nor  the  finding  thereon  binds  the  third  party,  unless  heia 
in  some  way  connected  with  the  party  filing  it.'* 

§  692.  The  same.  Bight  of  defendant  to  a  return  under  this 
plea.  Upon  the  sufHciency  of  this  plea  as  a  defense  no  ques- 
tion has  ever  been  raised.  But  as  to  whether  proof  of  property 
in  a  third  person  in  no  way  connected  with  the  suit  will  entitle 
the  defendant  to  judgment  for  a  return  of  the  goods,  without 
connecting  himself  with  the  title  of  such  third  person,  is  a 
question  upon  which  the  cases  differ.  Many  of  them  hold 
that  the  defendant  may  plead  property  in  a  stranger  to  the 
suit,  and  upon  this  plea  may  have  returii  of  the  goods  without 
connecting  himself  with  the  title  of  such  stranger.  The  de- 
fendant, it  is  said,  ought  to  have  return,  because  the  possession 
was  illegally  taken  from  him.^     Upon  a  plea  in  abatement 

kinlcy  v.  M'Gregor,  3  Wliart.  368;  Gentry  o.  Bargis,  6  Blackf.  2G3;  John- 
sou  V.  Plowman,  49  Barb.  472. 

1  Morris?).  Danielson,  3  Hill,  168. 

«  McClung  ®.  Bergfeld,  4  Minn.  148. 

*  Tliompson  v.  Sweetser,  43  Ind.  313. 

*  Edwards  v.  McCurdy,  13  111.  496. 

5  Parker  v.  Mellor,  1  Ld.  Raym.  217;  Salkold  v.  Skelton,  Cro.  Jac.  519; 
Wild  man  v.  North,  2  Lev.  92 ;  Presgrove  v.  Saunders,  6  Mod.  81 ;  Presgrave 
V.  Saunders,  2  Ld.  Raym.  984;  Crosse  v.  Bilson,  2  Ld.  Raym.  1010.  And 
this  rule  has  been  followed  in  a  number  of  modern  cases.  Harrisons.  Mc- 
Intosli,  1  John.  384;  Walpole  v.  Smith,  4  Blackf.  305.  "  It  is  not  necessary 
for  the  defendant,  under  this  plea,  to  connect  himself  with  the  title  of  the 
stranger.  It  is  enough  for  him  that  the  plaintiff  does  not  own  it."  An- 
derson V.  Talcott,  1  Gilm.371;  Ingraham  v.  Hammond,  1  Hill,  353.  Con- 
suit  Constantine  v.  Foster,  57  111.  38;  Gotloff  v.  Henry,  14  111.  384;  Hunt  v. 


378  PLEADING    BY   DEFENDANT. 

sustained,  the  action  is  suspended  for  the  time.  A  plea  in  bar, 
if  successful,  destroys  the  action.  ^  It  must  also  be  observed 
that  upon  judgment  on  a  plea  in  abatement  that  the  writ  be 
quashed,  the  return  of  the  goods  does  not  necessarily  follow. 
Keturn,  in  fact,  is  not  ordered  unless  the  defendant  show  that 
the  goods  were  delivered  to  the  plaintiff  on  the  writ,  and  that 
they  ought  to  be  returned;  and  by  the  old  authorities  it  seems 
that  there  is  no  reason  why  the  defendant  cannot  assert  title 
in  himself  and  ask  return  in  a  plea  in  abatement. ^ 

§  693.  Observations  upon  this  rule.  But  this  cannot  be 
said  to  be  a  general  rule.  A  mere  trespasser,  or  one  who  has 
obtained  possession  of  goods  by  his  own  wrongful  act,  cannot 
set  up  the  title  of  a  stranger,  and  thereby  obtain  a  return  of 
goods  wrongfully  taken,  without  in  some  way  connecting  him- 
self with  the  title  of  the  stranger. ^ 

§  694.  The  same.  This  point  was  clearly  stated  by  Schol- 
FiELD,  J.,  in  a  recent  Illinois  case:  ''The  property,  whether  in 
the  defendant  or  a  third  person,  sufficient  to  sustain  a  defense, 
must  be  such  as  goes  to  destroy  the  interest  of  the  plaintiff  in 
the  property  in  dispute,  and  which,  if  existing,  would  sustain 
the  action;  or,  in  other  words,  such  as  would  defeat  an  action 
of  trespass  if  brought  for  a  wrongful  taking,  or  trover  if 
brought  for  a  wrongful  detention."  As  against  a  wrong-doer 
prior  rightful  possession  is  sufficient  to  enable  the  plaintiff  to 
maintain  the  action.     If  the  right  of  the  plaintiff  is  better 

Chambers,  1  Zab.  627 ;  Noble  v.  Epperly,  6  Ind.  414 ;  Prosscr  v.  Woodward, 
21  Wend.  205;  Johnson  v.  Neale,  6  Allen,  229;  Seibert  v.  M'Henry,  6  Watts. 
303.  "  When  any  part  of  the  goods  belong  to  a  third  person,  the  defendant 
is  entitled  to  a  verdict  for  those  goods  or  their  value.''  Morss  v.  Stone,  5 
Barb.  516;  Snow  v.  Roy,  22  Wend.  602;  Finehout  v.  Grain,  4  Hill,  537; 
Seymour  v.  Billings.  12  Wend.  285;  Williams  v.  Beede,  15  N.  H.  485.  Prop- 
erty in  defendant,  or  in  a  third  person,  may  be  pleaded  in  bar  or  in  abate- 
ment. Boies  V.  Witherall,  7  Me.  162.  Wilson  v.  Gray,  8  Watts.  (Pa.)  35,  and 
cases  cited.  But  the  plea  in  bar,  and  a  defense  under  it,  is  the  more  common. 

'  Wallis  V.  Savil,  Lutw.  16. 

'  Gilbert  on  Replevin,  126,  citing  many  old  cases. 

»  Duncan  v.  Spear,  11  Wend.  54;  Rogers  v.  Arnold,  12  Wend.  30;  Brown 
V.  Webster,  4  N.  H.  500;  Reed  v.  Reed,  13  Iowa,  5;  Dozier  v.  Joyce,  8  Por- 
ter, (Ala )  303;  Stowell  v.  Otis,  71  N.  Y.  36;  Gerber  v.  Monie,  56  Barb.  652; 
lloyt  V.  Van  Alstyne,  15  Barb.  563.  See  Wilkerson  v.  McDougal,  48  Ala. 
518. 


OBSERVATIONS    UPON    THIS   EULE.  OiV 

than  that  of  the  defendant,  whatever  it  may  be  with  regard  to 
the  rest  of  the  world,  lie  will  recover.  If  the  action  can  be 
sustained  by  one  whose  title  rests  in  the  simple  possession  of 
the  goods,  unquestionably  in  similar  cases  the  same  title 
would  justify  a  judgment  in  his  favor  for  a  return  of  the 
goods,  where  he  occupied  the  position  of  defendant.^  This 
decision  is  abundantly  sustained  by  the  authorities.  It  follows 
the  leading  cases  wherever  this  question  has  been  raise'J,^  and 
is  in  harmony  with  the  rule  in  trover,  which  is  in  this  respect 
substantially  like  replevin;  the  defendant,  a  wrong-doer,  can- 
not set  up  title  in  a  third  person  to  defeat  the  plaintiff's  suit, 
without  connecting  his  title  with  that  of  the  stranger.^ 

§  695.  The  same.  Illustrations.  In  detinue,  when  the 
plaintiif  has  shown  a  prior  possession  and  made  out  a  prima 
facie  case,  the  defendant  cannot  defeat  his  recovery  by  simply 
showing  an  outstanding  title  in  a  stranger,  with  which  he  in 
no  way  connects  himself*  In  some  of  the  cases  cited,  the 
right  to  possession  was  alone  put  in  issue.  When  the  plaintiff 
claims  possession,  and  the  right  of  possession  is  alone  put  in 
issue,  the  defendant  cannot  show  title  in  a  third  party,  because 
that  may  be  consistent  with  the  plaintiff's  right  of  possession. 
A  stranger  may  have  title,  while  the  plaintiff  may  have  the  right 
to  present  possession. ^  The  defendant  cannot  set  up  title  in 
a  third  person  who  is  shown  to  acquiesce  in  the  plaintiff's 
claim.' 

'  Van  Namee  r.  Bradley,  69  111.  300,  closely  following  Presgrave  v. 
Saunders,  1  Salk.  5.  Compare,  ou  this  point,  Chambers  v.  Hunt,  22  N.  J. 
L.  553. 

*  Rogers  v.  Arnold,  12  Wend.  37;  Duncan  v.  Spear,  11  Wend.  54;  Miller 
V.  Jones,  Admr..  26  Ala.  248;  Gerber  v.  Monie,  56  Barb.  653;  Hoyt  v.  Van 
Alstyne,  15  Barb.  568;  Stowell  v.  Otis,  71  N.  Y.  36. 

3  Dozier  ■».  Joyce,  8  Porter,  (Ala.)  315;  O'Brien  t.  Hilburn,  22  Tex.  624; 
Schermerhorn  ?;.  Van  Valkenburgh,  11  Johns.  529;  Rotan  ij.  Fletcher,  15 
Johns.  208.  But  see  Hurst  v.  Cook,  19  Wend.  463,  examining  all  the  early 
authorities,  and  holding  that  in  trover  plea  of  property  in  third  person  is 
bad. 

*  Sims  ?7.Boynton,  32  Ala.  354;  Lowreraore  v.  Berry,  19  Ala.  130;  McGuire 
V.  Shelby.  20  Ala.  456;  Harker  v.  Dement.  9  Gill.  (Md.)  7. 

»  Reese  v.  Harris,  27  Ala.  301 ;  Corbitt  ».  Heisey,  15  Iowa,  296. 

*  Frost  V.  Mott,  34  N.  Y.  253. 


880  PLEADING   BY   DEFENDAl  _. 

§  696.  The  traverse.  When  the  defendant  pleads  property 
in  himself,  or  in  a  third  person,  the  plea  should  contain  a 
"  traverse,"  as  it  is  called, ^  This  is  simply  a  denial  of  the 
plaintiff's  right.  It  puts  him  upon  proof  of  his  title;  to  sus- 
tain the  issues  tendered  by  this  plea  he  is  bound  to  prove  his 
rights  as  alleged.  The  traverse,  in  fact,  is  the  material  part 
of  the  i^Iea.^  This  plea  should  also  contain  a  statement  that 
the  property  is  in  the  defendant,  or  in  some  third  person 
named;  this  latter  averment  is  regarded  only  as  an  induce- 
ment to  the  main  issue,  which  is  the  denial  of  the  plaintiff's 
right. 3  It  is  the  denial  of  his  right  that  the  j)laintiff  must 
answer.  He  cannot  be  permitted  to  waive  the  denial  of  his 
own  rights,  contained  in  the  plea,  and  content  himself  with  a 
denial  of  the  rights  asserted  by  the  defendant.^ 

§  697,  Exceptions  to  this  rule.  There  are  cases,  however, 
which  seem  to  hold  that  a  plea  denying  the  plain tifi''s  right 
may  be  good  without  a  traverse.^  Where  a  plea  contains 
simply  an  affirmative  allegation  that  the  property  is  the  prop- 
erty of  the  defendant,  or  a  stranger  to  the  suit,  without  a 
denial  of  the  plaintiff's  title,  the  burden  of  proof  will  be  upon 
the  defendant,  wlio  asserts  the  title;^  and  this  is  in  harmony 
with  the  general  rule  of  pleading  in  other  cases.     The  burden 

'Rogers  v.  Arnold,  12  Wend.  34;  Anstice  v.  Holmes,  3  Denio,  244;  Prin- 
gle  V.  Phillips,  1  Sandf.  292;  Prosser  v.  Woodward,  21  Wend.  208;  Hunt  v. 
Chambers,  1  Zab.  (21  N.  J.)  625;  Robinson  p.  Calloway,  4  Ark.  101. 

2  Anderson  v.  Talcott,  1  Gilm.  371;  Johnson  v.  Neale,  6  Allen,  (Mass.) 
228;  Seibert  «.  McHenry,  6  Watts,  (Pa.)  303;  Hunt  v.  Chambers,  1  Zao. 
(21  N.  J.)  627;  Noble  ».  Epperly,  6  Ind.  414;  Dickinson  v.  Lovell,  35  N. 
H.  9. 

8  Gotloff  v.  Henry,  14  111.  384;  Anderson  v.  Talcott,  1  Gilm.  371 ;  Chandler 
V.  Lincoln,  52  111.  74;  Landers  v.  George,  40  Ind  160;  Parsley  v.  Huston,  3 
Blackf.  348;  Gentry  v.  Bargis,  6  Blackf.  262;  Robinson  v.  Colloway,  4  Ark. 
101 ;  Hunt  v.  Bennett,  4  G.  Greene,  (la.)  513. 

*  Robinson  v,  Calloway,  4  Ark.  101;  Constantine  v.  Foster,  57  111.  36; 
Chambers  v.  Hunt,  2  Zab.  (22  N.  J.)  552;  Same  v.  Same,  18  K  J,  L.  339; 
Brown  u  Bissett,  1  Zab.  267;  Reynolds  b.  McCormick,  62  111.415;  Rich- 
ardson V.  Smith,  29  Cal.  529. 

»  Johnson  v.  Neale,  6  Allen,  228;  Whitwell  v.  Wells,  24  Pick,  25;  Love- 
day  V.  Mitchell,  Corayns,  248. 

*  Chandler  v.  Lincoln,  52  111.  76;  Harwood  v.  Smethurst,  5  Dutch.  (N.  J.) 
196. 


6UKEENDER    TO   A   THIED    TAKTY.  381 

of  proof  is  on  liim  who  asserts  or  holds  the  affirmative  of  tlie 
issue,  and  if  the  defendant  choose  to  assert  title  in  himself, 
without  denial  of  plaintiff's  right,  he  may  do  so,  at  the  risk  of 
making  out  the  title  he  asserts, ^ 

§  698.  Replication.  In  a  replication  to  plea*  of  property 
in  stranger,  the  plaintiff  must  simply  reaffirm  his  own  title; 
he  is  under  no  obligation  to  notice  the  inducement  or  intro- 
ductory part  of  the  plea,  or  the  claim  that  the  property  belongs 
to  the  defendant.2  Replication  that  the  goods  were  delivered 
to  plaintiff  by  A.  for  safe  keeping,  without  alleging  property 
in  A.,  is  not  sufficient.  Tiie  deposit  may  have  been  by  one 
who  had  no  authority  or  title.^ 

§  699.  Surrender  to  a  third  party  by  order  of  court. 
When,  during  the  pendency  of  the  action,  and  before  trial, 
the  defendant  has  been  legally  required  to  deliver  the  property 
in  dispute  to  a  third  person,  who  is  the  owner  as  against  both 
the  parties  to  tiie  suit,  such  delivery  may  be  pleaded,  and  will 
constitute  a  good  defense  to  the  replevin  suit.  Thus,  when 
the  sheriff  was  sued,  by  an  assignee  of  the  debtor,  for  goods 
which  he  had  attached,  he  filed  answer  that  the  assignment 
was  made  to  hinder,  delay  and  defraud  creditors;  that  the 
debtor  had  been  adjudged  a  bankrupt,  and  that  the  assignee  in 
bankruptcy  had  demanded  and  taken  the  goods,  such  answer 
was  regarded  a  sufficient  defense  to  the  replevin  suit.^  This 
rule  is  based  upon  the  idea  that,  pending  the  suit,  the  property 
is  in  the  custody  of  the  law,  and  the  court  has  a  right  to  make 
such  disposal  of  it  as  it  sees  proper. 

'  As  to  evidence  to  show  property  in  a  third  person,  see  Edmunds  v. 
Leavitt,  21  N.  H.  198. 

2  Chambers  v.  Hunt,  2  Zab.  (22  N.  J  L.)  552. 

8  Harrison  D.  M'Intosh,  1  Johns.  384. 

*  Bolauder  v.  Gentry,  36  Cal.  109;  Hunt  v.  Robinson,  11  Cal.  262;  Cole  v. 
Conally,  16  Ala.  274;  O'Connor  v.  Blake,  29  Cal.  313. 


383 


PLEA    OF   KON    CEPIT   AND   NON   DETINET. 


CHAPTEK   XXII. 


PLEA  OP  NON  CEPIT  AND  NON  DETINET. 


Section. 
Plea  of  non  cepit  or  non  detinet  700 
Admissions  in  the  pleadings  not 
evidence  as  to  matters  previ- 
ously put  in  issue   .        .        .  701 
Issues  admitted  cannot  be  de- 
nied   702 

Special  statutory  rules  .  .  703 
Eflect  of  a  plea  of  non  cepit  .  704 
Form  of  plea  of  non  cepit  .  705 
Other    pleas    may    be    joined 

with 706 

Plea  of  cepit  in  alio  loco  .  .  707 
2fon  detinet  similar  to  non  cepit  708 


Section. 

Illustrations  of  the  use  of  this 
plea 709 

The  same.     Observations  .        .710 

Disclaimer  of  interest  in  prop- 
erty no  defense        .        .        .  711 

Plea  of  justification;  the  bur- 
den is  upon  the  party  alleg- 
ing it 713 

General  rules  governing  plea 
of  non  detinet ....  713 

If  the  defendant  claims  the 
property  or  damages,  he  must 
so  allege  it  in  his  plea    .        .  714 


§  700.  Plea  of  non  cepit  or  non  detinet.  By  the  common 
law,  this  action  was  for  the  purpose  of  recovering  a  distress, 
and  the  plaintiff  always  charges  a  wrongful  taking  and  de- 
taining. The  general  issue  in  such  case  was,  ^'■non  eepit.^^'^ 
Strictly  speaking,  there  is  no  general  issue  to  the  action  as 
usually  brought  in  modern  practice;  for  the  reason  that  the 
action  in  almost  all  cases  involves  title  to  the  goods,  or  some- 
thing more  than  a  simple  taking  and  detaining. ^  Non  cepit^ 
however,  is  unquestionably  a  good  plea,  and  is  the  general 
issue  when  the  charge  is  for  a  wrongful  taking,  oniy.^  J^on 
detinet  is  the  general  issue,  to  a  charge  of  wrongful  detention, 

'  Bac.  Abr.  title  Replevin  and  Avowry;  Vin.  Abr. 

*  Dole  V.  Kennedy,  38  111.  284;  Amos  v.  Sinnott,  4  Scam.  445;  Anderson 
-D,  Talcott,  1  Gilm.  371 ;  Gibson  v.  Mozier,  9  Mo.  258.  See  Ashby  v.  West,  3 
Porter,  (Ind.)  170. 

3  In  Massachusetts,  special  pleas  in  replevin  were  prohibited.  All  mat- 
ters of  defense  were  permitted  under  plea  of  not  guilty.  Miller  v.  Sleeper, 
4  Cush.  370. 


SPECIAL    STATUTORY   RULES.  8S3 

but  the  plea  of  non  cepit  is  no  reply  to  any  other  charge  than 
that  of  taking,  and  non  detinet  is  not  a  proper  plea  to  any 
charge  except  for  the  detention  of  the  goods.  These  pleas  are 
of  the  same  substantial  nature  as  the  plea  of  not  guilty,  in 
trespass.  Statutory  provisions  exist  in  some  of  the  States  by 
which  non  cepit  or  non  detinet  puts  in  issue  all  material  facts, 
not  only  the  taking  and  detention,  but  the  right  of  property.^ 
And  these  decisions  will  probably  be  followed  in  all  States 
having  similar  statutes. ^ 

§  701.  Admissions  in  the  pleadings  not  evidence  as  to  mat- 
ters previously  put  in  issue.  It  is  a  general  rule  of  pleading, 
which  applies  with  peculiar  force  in  replevin,  where  both 
parties  are  plaintiffs,  that  when  any  particular  fact  is  affirmed 
upon  one  side  and  formally  denied  upon  the  other,  that  fact  is 
in  issue;  no  subsequent  admission  in  the  pleading  can  be  used 
as  evidence  of  the  truth  of  it.^ 

§  702.  Issues  admitted  cannot  be  denied.  It  is  also  a  rule 
that  facts  whicli  are  formally  admitted  in  the  pleading  cannot 
be  subsequently  denied.  Tiie  plaintiff  h?^ving  based  his  cause 
of  action  upon  an  alleged  possession  in  the  defendant,  cannot 
afterwards  deny  such  possession,  and  geek  a  recovery  upon  the 
ground  that  the  defendant  never  had  possession.'* 

§  703,  Special  statutory  rules.  There  is  a  provision  incor- 
porated into  many  of  the  codes,  requiring  a  full  statement  of 
all  the  plaintiff's  claim  in  the  complaint,  and  compelling  the 
defendant  to  specially  deny  such  matters  as  he  wishes  to  dis- 
pute upon  the  trial.  A  provision  of  the  common  law  system 
has  also  been  introduced,  by  which  the  defendant  is  regarded 
as  admitting  all  such  matters  as  he  does  not  in  his  answer, 

»  Plainfield  v  Batchelder,  44  Vt.  9 ;  Loop  v.  Williams,  47  Vt.  415 ;  Wal- 
pole  V.  Smith,  4  Blackf.  (Ind)  304;  Noble  v.  Epperly,  6  Ind.  415;  Timp  v. 
Docklmm,  32  Wis.  151;  Yates  v.  Fassett,  5  Denio,  (N.  Y.)  26;  Loomis  v. 
Foster,  1  Mich.  165.     See,  also,  Dillingham  v.  Smith,  30  Me.  370. 

2  Campbell  v.  Quinlan,  3  Scam.  288.  In  this  connection,  consult  Little 
«.  Smith,  4  Scam.  400;  Rigg  v.  Wilton,  13  111.  15 

3  Harington  v.  Macmorris,  5  Taunt.  228;  Edmonds  v.  Groves,  2  Mees.  «& 
W.  642;  Fearn  v.  Filica,  7  M.  &  G.  513.  See  Whitaker  v.  Freeman,  1  Dev. 
(N.  C.)  271 ;  Kirk  v.  Nowell.  1  Term  R.  261. 

*  Kingsbury  v.  Buchanan,  11  Iowa,  888. 


SSi  PLEA    OF   NON    CEPIT    AND   NON    DETINET. 

deny.      Where  such   provisions   exist,   the  pleader  must  be 
careful  to  set  out  all  such  matters  as  he  relies  upon. 

§  704.  Effect  of  a  plea  of  non  cepit.  The  plea  of  non  ceplt 
is  a  proper  plea  of  general  issue  to  a  charge  of  wrongful 
taking.  Its  office  is  to  deny  the  taking,  i  It  does  not  assert 
title  in  the  defendant;  its  legal  effect  is  to  admit  title  to  the 
property  to  be  in  the  plaintiif.^  It  admits  every  fact  neces- 
sary to  sustain  the  plaintiff's  action,  except  the  single  one  of 
taking. 3  Under  this  plea  the  defendant  cannot  prove  prop- 
erty in  himself;^  nor  in  a  stranger;''  nor  give  evidence  of  a 
justification; 6  nor  ask  a  return  of  the  goods;''  or,  for  dam- 
ages.*    But  while  this  plea  admits  the  property  to  be  in  the 

'  Ely  v.  Ehle,  3  Comst.  510;  Marshall  v.  Davis,  1  Wend.  115;  Rogers  v. 
Arnold.  12  Weud.  34;  Seymour  v.  Billings,  13  Wend.  2«(5;  Trotter  v.  Tay- 
lor, 5  Blackf.  431;  Carroll  v.  Harris,  19  Ark.  238;  Wilson  v.  Royston,  3 
Ark.  315;  D'Wolf  ij.  Harris,  4  Mason,  (C.  C;  528;  Hunt  v.  Chambers,  1 
Zab.  (31  N.  J.)  634;  Saufd.  Mf.  Co.  v.  Wiggin,  14  N.  H.  446;  Anderson  v. 
Talcott,  1  Gilm.  365;  Whitwell  v.  Wells,  34  Pick.  28;  Miller  v.  Sleeper,  4 
Cush,  3T0;  McFurland  i;.  Barker,  1  Mass.  153. 

"  Coit  V.  Waples,  1  Minn.  134;  Ringo  v.  Field,  1  Eng.  (6  Ark.)  43;  Trotter 
«.  Taylor,  5  Blackf.  431;  Douglas  v.  Garrett,  5  Wis.  88;  Hopkins  v.  Burney, 
2  Fla.  46;  Galusha  v.  Butterfield,  3  Scam.  227;  Sanfd.  Mf.  Co.  v.  Wiggin,  14 
N.  H.  446;  Green  v.  Dingley,  24  Me.  137;  Sawyer  v.  Hutf,  25  Me.  465; 
Moulton  V.  Bird,  31  Me.  297;  Van  Namee  v.  Bradley,  69  111.  299;  Johnson 
<o.  Woolyer,  1  Str.  507;  Bemus  v.  Beckman,  3  Wend.  672;  Bourk  v.  Riggs, 
38  HI.  321;  Vose  «.  Hart,  13  HI.  378;  Warner  b.  Matthews,  18  HI.  83; 
Chandler  v.  Lincoln,  52  111.  74;  Amos  v.  Sinnott,  4  Scam.  445;  Hanford  v. 
Obrecht,  49  111.  151 ;  Mitchell  v.  Roberts,  50  N.  H.  490. 

s  Ely  v.  Ehle,  3  Comst.  (N.  Y.)  510. 

*  Smith  V.  Snyder,  15  Wend.  327;  Miller  v.  Sleeper,  4  Cush.  (Mass.)  370. 

*  Vickery  v.  Sherburne,  20  Me.  35. 

*  McFarland  v.  Barker,  1  Mass.  153. 

'Butcher  v.  Porter,  1  Salk.  94;  Simpson  v.  McFarland,  18  Pick.  427; 
Holmes  v.  Wood,  6  Mass.  1;  Bourk  v.  Riggs,  38  111.  321;  Seymour  v.  Bil- 
lings, 12  Wend.  286;  Vose  v.  Hart,  12  111.  378;  Hopkins  v.  Burney,  2  Fla. 
47;  Moulton  v.  Bird,  31  Me.  397. 

*  Douglass  V.  Garrett,  5  Wis.  88.  Where  the  issue  is  upon  the  plea  of  non 
cepii  alone,  if  found  for  the  defendant,  he  is  not  entitled  to  a  return. 
Underwood  v.  White,  45  111.  488.  "If  the  defendant  claim  a  return,  he 
must  add  an  avowry."  Hopkins  v.  Burney,  3  Fla.  47.  "It  puts  in  issue 
nothing  but  the  caption  and  the  place,  where,  etc.  Under  this  plea,  the 
defendant  cannot  show  property  out  of  the  plaintiff."  Wilson  v.  Royston,  3 
Aik.  315;  D'Wolf  v.  Harris,  4  Mason,  528;  Pangburn  «.  Patridge,  7  John. 
143. 


OTHER    PLEAS    MAY    BE    JOINED    WITH.  385 

plaintiff,  it  denies  his  right  to  damages;^  and  under  this  plea 
tlie  defentlant  cannot  ask  damages.  It  would  be  absurd  to 
renounce  all  claim  to  the  property,  and  then  claim  damages. ^ 
If  the  defendant  desires  to  claim  damages,  he  must  add  a  plea 
setting  up  a  right  in  himself. ^  Under  this  issue,  the  plaintiff 
must  prove  an  unlawful  taking  substantially  at  the  time  and 
place  laid  in  the  declaration.* 

§  705.  Form  of  plea  of  non  cepit.  Tlie  usual  form  of  the 
])lea  of  non  cepit  is,  non  cepit  modo  et  forma.  This  puts  in 
issue  not  only  the  taking,  but  the  taking  at  the  time  and  place 
mentioned  in  the  declaration.  If  the  defendant  desires  to 
present  this  issue,  and  to  have  a  return  of  the  goods,  he  should 
avow  and  justify  the  taking,  or  in  some  way  set  up  a  right  to 
the  goods  and  ask  a  return. 

§  706.  Other  pleas  may  be  joined  with.  The  defendant  may 
join  as  many  other  pleas  with  non  cepit  as  he  deems  proper. 
They  are  not  required  to  be  consistent  with  each  other.  Thus, 
he  may  plead  non  cepit,  set  up  his  right  to  distrain,  claim 
ownership  of  the  premises  where  the  distress  was  made,  or 
title  in  himself  or  in  a  stranger."  This  rule,  permitting  the 
defendant  to  lile  several  pleas  was  originally  given  by  statute 

'  Hopkins  v.  Burney,  2  Fla.  45. 

*  Hopkins  v.  Buruey,  2  Fla.  45 ;  Douglass  v.  Garrett,  5  Wis.  88. 

3  Smith  v.  Snyder,  15  Wend.  324.  "  The  plea  only  involves  the  taking 
and  the  place,  not  the  title  to  the  property."  Se^'mour  v.  Billings,  12 
Wend.  286.  "  This  plea  admits  every  fact  necessary  to  maintain  the  action 
except  the  taking;  that  fact  being  proven,  the  plaintiff  maintains  tiie  issue. 
If  the  defendant  has  any  justification  or  excuse,  he  must  plead  it."  Ely  c. 
Ehle,  3  Comst.  510;  People  v.  Niagara  C.  P.,  4  Wend.  217.  Neither  non, 
cepit  nor  non  deiinet  denies  the  property  in  the  plaintiff.  Chandler  v.  Lin- 
coln, 52  111.  76. 

*  Simpson  v.  McFarland,  18  Pick.  429;  Badger  v.  Phinny,  15  Mass.  359; 
Baker  v.  Fales,  16  Mass.  147;  Marston  v.  Baldwin,  17  Mass.  606.  A  wrong- 
ful possession  is  regarded  as  equivalent  to  a  wrongful  taking;  so,  also,  is 
obtaining  possession  from  one  who  had  no  authority.  Gray  v.  Nations,  1 
Ark.  566.  And,  see  Sawyer  v.  Huff,  25  Me.  465;  Marshall  v.  Davis,  1  Wend. 
115,  Barrett  v.  Warren,  3  Hill,  348. 

"  McPherson  v.  Melhiuch,  20  Wend.  671 ;  Simpson  v.  McFarland,  18  Pick. 
427;  Whitwell  v.  Wells,  24  Pick.  29;  Mt.  Carbon,  etc.  v.  Andrews,  53  111. 
184;  McFarland  v.  Barker,  1  Mass.  153;  Shutcr  v.  Page,  11  Johns.  196; 
Paul  V.  Luttrell,  1  Col.  319. 
25 


386  PLEA    OF    NON    CEPIT    AKD   NON   DETINET. 

4  Anne,  C.  16,  A.  D.  1706,  and  has  been  the  constant  practice 
since  that  time.  The  approved  doctrine  is,  that  an  admission  of 
a  state  of  facts  in  one  plea  cannot  be  taken  as  evidence  of  the 
existence  or  non-existence  of  those  facts,  if  denied  in  any  other. ^ 

§  707.  Plea  of  cepit  in  alio  loco.  The  plea  of  cepit  in  alio 
loco^  (took,  but  in  another  place,)  is  proper  in  jastiHcation  for 
a  distress  for  damage  feasant,  or  for  rent,  but  is  not  applicable 
to  other  cases.^  If  the  defendant  ever  had  the  cattle  at  the 
place  named  in  the  declaration,  even  if  only  in  leading  them 
to  the  pound,  he  should  avow  accordingly.^  It  must  be  fol- 
lowed by  an  avowry  or  cognizance,  or  by  some  justification  of 
the  taking,  or  it  is  no  defense,  as  the  plea  admits  the  taking, 
and  must  justify,  or  admit  that  it  was  wrongful.* 

§708.  Non  detinet  similar  to  non  cepit.  The  plea  of  non 
detinet  is  exceedingly  like  non  cepit.  It  is  governed  by  the 
same  general  rules  and  principles,  and  puts  in  issue  simply 
the  charge  of  wrongful  detention. ^  It  has  been  said,  with 
much  force,  that  non  detinet  is  a  proper  plea  to  a  charge  of 
wrongful  taking;  that  the  plaintiff  must  establish  a  detention, 
even  when  his  charge  was  for  taking;  that  the  detention  is  a 
material  fact  to  be  shown,  and  that  this  plea  is  proper. « 

§  709.  The  same.  Illustrations.  In  Indiana,  where  the 
complaint  alleged  that  the  plaintiff  was  the  owner,  and  enti- 
tled to  the  possession  of  the  property  "  which  the  defendant 
lias  possession  of  without  right,  and  unlawfully  detained  from 
the  plaintiff,"  the  defendant  replied,  denying  the  unlawful  de- 
tention. The  denial  of  the  detention  was  held  to  tender  a  proper 
issue.'  In  Illinois  this  same  point  was  decided  the  other  way. 
The  declaration  contained  but  one  count;  that  was  for  the 

1  Edmonds  v.  Groves,  2  Mces.  &  "W.  642 ;  Harington  v.  Macmorris,  5  Taunt 
232. 

2  Lougee  v.  Colton,  9  Dana,  rKy.)  123. 

»  Ch.  Plea,  Vol.  1,  p.  499;  Snow  v.  Como,  Str.  Rep.  507;  Sawyer  v.  Huff, 
25  Me.  465 ;  Amos  v.  Sinnott,  4  Scam.  445. 

*  Gilbert  on  Rep.  p.  129. 

'  Chandler  v.  Lincoln,  52  III.  74;  Simmons  v.  Jenkins,  76  III.  497;  Fer- 
rell  V.  Humphrey,  12  Ohio,  113;  Oaks  v.  Wyatt,  10  Ohio,  341. 

«  Paul  V.  Luttrell,  1  Col.  317. 

'  Riddle  v.  Parke,  12  Ind.  89. 


DISCLAIMER    OF    INTEKEST   NO   DEFENSE.  387 

wrongful  taking  and  detention.  The  defendant  pleaded  non 
detinet  and  other  pleas.  The  court  said,  the  wrongful  taking 
alleged  in  the  declaration  was  traversable,  and  the  defendant 
admitted  it  by  denying  the  wrongful  detention  only.' 

§  710.  The  same.  Observations.  The  statutes  under  which 
these  cases  arose  are  in  substance  the  same,  but  the  conflict  is 
not  so  serious  as  may  at  first  ap])ear.  In  the  Illinois  case  the 
court  followed  the  approved  doctrine  that  the  averment  of  tak- 
ing was  not  answered  by  the  plea  of  nori  detinet^  and  was 
therefore  admitted.  It  does  not  follow,  liowever,  from  any- 
thing appearing  in  that  case,  that  the  defendant  would  not 
have  been  permitted,  under  the  plea  of  no)i  detinet^  to  have 
shown  that  he  had  returned  the  goods  before  suit  brought,  had 
he  chosen  to  take  upon  himself  the  burden  of  such  proof. 
The  Colorado  case  holds,  in  substance,  that  the  burden  of  proof 
of  the  detention  would  have  been  upon  the  plaintiff. 2  The 
declaration,  in  that  case,  charged  simply  the  taking,  and  not 
the  detention.  The  conclusions  drawn  from  these  cases  may 
not  be  warranted,  but  no  other  mode  is  perceived  of  harmoniz- 
ing the  seeming  differences  they  present. 

§  711.  Disclaimer  of  interest  in  property  no  defense.  The 
defendant  cannot  avoid  an  action  of  replevin  by  a  disclaimer 
of  any  interest  in  the  i)roperty.  This  is  no  answer  to  the 
declaration,  and  is  no  reason  for  dismissing  the  suit.  He  may 
be  gnilty  of  a  wrongful  taking,  or  wrongfully  detaining,  not- 
withstanding his  disclaimer.  Such  an  instrument  was  properly 
stricken  from  the  files. ^ 

§  712.  Plea  of  justification ;  the  burden  is  upon  the  party 
alleging  it.  AVliere  the  defendant  justifies  the  taking  under 
process,  tiling  no  other  plea,  the  burden  is  upon  him  to  sustain 
his  plea.* 

'  Simmons  v.  Jenkins,  76  111.  480. 

'  Where  the  declaratian  was  for  the  wrongful  taking  and  detention,  there 
was  no  plea  of  non  cepit,  but  pleas  of  property  in  a  third  person,  upon  which 
issue  was  taken.  The  pleading  was  considered  as  admitting  the  taking 
and  detention.  The  burden  of  proof  was  then  upon  the  defendant  to  estab- 
lish the  truth  of  his  pleas.     Kern  v.  Potter,  71  111.  19. 

"  Smith  V.  Emerson,  16  Ind.  355. 

*  Hobbs  V.  Myres,  1  B.  Mon.  (Ky.)  241. 


3S8  PLEA    OF   NON   CEPIT    AND    NON    DETINET. 

§  713.  General  rules  governing  plea  of  non  detinet.  The 
rules  governing  pleas  of  non  detinet  are  similar  in  principle 
to  those  applicable  to  pleas  of  non  cepit.  Under  the  issue 
formed  by  this  plea,  the  plaintiff  must  prove  his  right  to  im- 
mediate and  exclusive  possession  of  the  goods  and  the  wrongful 
detention  bj  the  defendant. ^  While  the  defendant  may  show 
that  he  had  returned  the  goods  before  suit,  or  that  he  never 
had  them,  he  cannot,  under  this  plea  alone,  if  successful,  have  a 
return  of  the  goods. 2  JSfon  detinet  admits  the  right  of  property 
to  be  in  the  plaintiff. ^  Under  it  tlie  plaintiff  must  prove  a 
wrongful  detention  by  defendant,  and  his  right  to  immediate 
possession.^  The  plea  of  non  detinet,  by  statute,  in  some  of 
the  States,  puts  in  issue  the  property  in  the  plaintiff,  as  well 
as  the  wrongful  detention,  and  under  such  plea  the  defendant 
is  presumed  to  assert  all  the  rights  which  the  statute  confers 
upon  such  plea. 5  A  return  may  therefore  be  awarded  under 
such  a  statute  upon  a  plea  of  non  detinet.^  In  Wisconsin, 
under  this  plea,  defendant  may  prove  his  right  to  the  possession 
or  his  title  to  the  property.' 

§  714.  Writ  not  dismissed  for  neglect  of  officer.  Within 
certain  limitations,  failure  of  an  officer  to  do  his  duty  will  not 
defeat  the  rights  of  a  party  not  in  fault.  The  wrongful  levy 
by  an  officer,  as  we  have  seen,  does  not  deprive  the  ownet  of 
his  goods. 8  When  the  writ  is  teclmically  defective  by  mistake 
of  tlie  clerk,  a  return  is  not  usually  ordered,  but  the  plaintiff 
may  retain  possession, ^  though  this  would  not  settle  the  ques- 
tion of  title.  So,  where  the  sheriff  was  by  law  required  to 
have  the  goods  appraised,  and  allowed  the  defendant  to  give 

'  Amos  V.  Sinnott,  4  Scam.  445;  Kogers  v.  Arnold,  12  Wend.  30. 

«  Johnson  v.  Howe,  2  Gilm.  345. 

3  Ingalls  V.  Bulkley,  15  111.  235.  Contra,  by  statute,  in  some  States,  Wal- 
pole  v.  Smith,  4  Blackf.  304;  Kennedy  v.  Shaw,  38  Ind.  474;  Timp  v.  Dock- 
ham,  82  Wis.  151;  Yates  v.  Fassett,  5  Denio,  26. 

*  AmosD.  Sinnott,  4  Scam.  445.  It  admits  the  property  to  be  in  plaintiflF, 
and  defendant  cannot  claim  return.    Wells  v.  McClenning,  23  111.  410. 

6  Walpole  V.  Smith,  4  BLickf.  304;  Yates  v.  Fassett,  5  Denio,  26. 
8  McKnight  v.  Dunlop,  4  Barb.  36.     See  Loop  v.  Williams,  47  Vt.  415. 
'  Dimond  v.  Downing,  2  Wis.  498;  Emmons  v.  Dowe,  2  Wis.  323. 
8  See,  ante,  %  260,  et  seq. 

•  See,  ante,  §  501. 


WKIT   NOT   DISMISSED   FOR   NEGLECT    OF    OFFICER.  3S9 

bond  and  have  a  return  of  them  if  he  wished,  and  the  officer 
did  not  have  tlie  goods  appraised,  and  no  opportunity  was 
given  to  the  defendant  to  give  tlie  statutory  bond  and  liave 
return,  this  does  not  authorize  a  dismissal  of  the  writ.  The 
officer  may  be  liable  in  such  case,  but  the  plaintiff  should  not 
be  made  to  suffer.^  So,  when  an  officer  makes  an  unauthor- 
ized levy  and  sale  of  good),  the  owner  does  not  lose  his  goods, 
but  may  replevy  them  from  the  purchaser.^ 

•  Parlin  v.  Austin,  3  Col.  337. 

'  Samuel  v.  Agnew,  80  111.  554;  Combs  v.  Gorden,  59  Me.  Ill;  Pierce  v. 
Benj amine,  14  Pick.  356. 


390 


KEPLEVIN   OF  A   DISTRESS. 


CHAPTER  XXIII. 


REPLEVIN   OF  A   DISTRESS. 


Section. 
The  right  of  distress  .        .        .  715 
Origin  of  the  right    .        .        .  716 
The  right  to  replevy  the  dis- 
tress          717 

Right  of  distress  in  this  coun- 
try     718 

Distress  not  a  suit  at  law  .  .  719 
Replevin  of  a  distress  .  .  720 
Rights  of  the  landlord  ,  .  721 
Sublessor's  liability  .  .  .  722 
Payment  to  landlord ;  who  is  a 

joint  tenant  ....  723 
Rights  of  the  tenant  .  .  .724 
The  avowry  and  cognizance  .  725 
Distinction  between  an  avowry 

and  cognizance       .        .        .  726 
The  exactness  required  in  these 
pleas 727 


Section. 
The  same.    Substance  of  these 

pleas 728 

The  rent,  how  payable ;  must  be 

certain 729 

The  terms  of  the  lease  .  .  730 
The  usual  plea  to  replevin  of  a     . 

distress 731 

Form  of  avowry  or  cognizance  732 
Plea  to  an  avowry  or  cognizance  733 
Plea  of  set  ofl'  to  an  avowry  .  734 
Plea  to  an  avowry ;  averments  in  735 
Plea   to   cognizance;    denying 

authority  of  bailiff         .        .  736 
Plea  of  "  non-tenure  "  or  "  noth- 
ing in  arrear ",        .        .        .  737 
Same  rules  apply  to  cognizance  738 
Effect  of  replevin  on  landloi'd's 
lien 739 


§  715.  The  right  of  distress.  Keplevin  is  the  ancient 
remedy  for  the  recovery  of  goods  wrongfully  seized  by  way  of 
distress.  It  does  not  fall  within  the  scope  of  this  work  to 
discuss  at  length  the  law  of  distress  or  the  rights  of  the  land- 
lord and  tenant.  Such  a  discussion  more  properly  belongs  to 
a  treatise  upon  that  subject.  Mere  mention  of  the  law  of 
distress  as  showing  the  foundation  upon  which  to  base  the 
replevin,  must  suffice. 

§  716.  Origin  of  the  right.  The  power  of  distress  was 
given  to  the  lord  in  lieu  of  a  forfeiture  of  the  land.  This  was 
done  for  the  purpose  of  compelling  the  tenant  to  pay  the  rent 
or  perform  the  services  due.  Lands,  originally,  were  occupied 
by  bondsmen,  who  were  themselves  the  property  of  the  lord, 


EIGHT    OF    DISTRESS    IN    THIS    COUNTRY.  391 

and  not  capable  of  owning  real  estate.  As  these  serfs  became 
enfranchised,  tlie  right  to  the  use  of  the  seil  became  the  right 
of  the  tenant,  but  the  rents  were  the  property  of  the  hmdlord, 
and  he  continued  to  collect  them  by  his  own  authority,  for  in 
theory  of  the  law  in  olden  time  no  man  needed  the  aid  of  a 
judge  to  take  what  was  his  own.^  In  process  of  time  the 
goods  came  to  be  regarded  as  the  property  of  the  tenant.  The 
landlord,  however,  had  the  right  to  seize  and  hold  them  as  a 
pledge  or  security  to  compel  the  tenant  to  perform  the  services 
or  pay  the  rent.  By  common  law  the  landlord  had  no  right 
to  sell  the  distress;  he  could  only  hold  it  as  a  pledge  or 
security.  The  statute,  2  W.  &  M.  C.  5,  gave  the  lord  author- 
ity, under  certain  conditions,  to  sell  the  distress.  This  remedy 
was  very  mild  compared  with  the  severity  of  the  older  law^, 
which  allowed  a  forfeiture  by  which  the  lord  would  seize  the 
land  and  turn  the  tenant  out,  thus  stripping  him  of  the  entire 
fruits  of  his  labor.2  This  power  of  distress  extended  not  only 
to  the  crops,  but  everything  on  the  land  was  equally  liable. 
This  right  became  an  instrument  of  great  oppression  and 
many  statutes  were  enacted  to  remedy  the  evils,  until  at 
length  the  tenant  was  permitted  to  show  that  the  taking  was 
wrongful  and  to  give  bonds  to  make  that  appear,  upon  which 
he  was  allowed  to  have  his  goods  restored  to  him;  that  is,  he 
was  permitted  to  take  back  the  pledge.  This  was  replegarl 
or  replevin.  Eeplevin  would  originally  lie  in  no  other  case 
than  to  recover  a  distress  wrongfully  taken. ^ 

§  717.  The  right  to  replevy  the  distress.  When  the  dis- 
tress was  for  any  cause  wrongful,  the  action  of  replevin  was 
given  to  the  tenant,  to  enable  him  to  recover  it. 

§  718.  Right  of  distress  in  this  country.  The  law  of  dis- 
tress has  been  very  generally  adopted  in  this  country.*  It 
never  existed  in  North  Carolina.  ^  In  Georgia  it  can  only 
issue  upon  the  oath  of  the  landlord ;  the  oath  of  an  agent  is 

'  Taylor  on  Landlord  and  Tenant,  §  557,  and  the  cases  cited. 
'  Bradby  on  Distresses,  6. 
2  See,  ante,  §  41,  et  seq. 

*  Woglam  V.  Cowperthwaite,  2  Dall.  (Pa.)  68;  Ridge  v.  Wilson,  1  Blackf. 
409;  Burket  v.  Boude,  3  Dana,  209;  Penny  v.  Little,  3  Scam.  (111.)  301. 
»  Dalgleish  v.  Graudy,  Cam.  &  N.  (N.  C.)  22. 


392  KEFLEVIN    OF    A    DISTRESS. 

not  snffie,ient.i  It  was  abolished  in  New  York  by  statute, 
May,  1846.8  It  does  not  exist  in  Missouri.^  Formerly  dis- 
tress was  permitted  of  all  goods  found  on  the  premises, 
whether  they  belonged  to  the  tenant  or  to  another  person. 
This  rule,  however,  has  now  been  ov^erturned  in  all  or  nearly 
all  the  States,^  and  by  statutory  modifications  the  manner  of 
enforcing  the  remedy  has  been  greatly  changed. 

§  719.  Distress  not  a  suit  at  law.  Distress  is  not  a  suit  at 
law.  The  landlord  distraining  empowers  some  one  as  his 
bailiff  to  seize  goods  of  the  tenant  of  suilicient  value  to  pay 
the  rent.  Upon  such  seizure  being  made,  it  is  the  duty  of  the 
bailiff  to  make  an  inventory  and  tile  it  in  the  proper  court. 
Upon  this  being  done  the  court  proceeds  to  enquire  if  the 
relation  of  landlord  and  tenant  exists,  and  if  so,  the  amount 
of  rent  due  to  the  landlord  for  rent,"  and  the  amount  so  found 
due  is  certified  by  the  court.  No  judgment  is  rendered  and 
no  execution  is  issued,^  but  a  certificate  is  issued  by  tlie  court 
to  the  bailiff  of  the  finding,  which  constitutes  his  authority 
to  sell.''  The  reason  for  this  is  found  in  the  fact  that  originally 
the  rent  was  the  property  of  the  lord.  His  rights  were  supe- 
rior to  the  tenant's  in  all  the  property  until  his  rent  was  paid 
in  full.  The  distress  was  a  taking  by  the  lord  or  by  his 
authority;  and  this  idea  so  far  continues  to  invest  this  pro- 
ceeding, that  the  courts  only  interfere  to  ascertain  that  tlie 
relation  of  landlord  and  tenant  actually  exists,  and  the  amount 
of  rent  due. 

§  720.     Replevin  of  a  distress.    Replevin  was  a  suit  at  law, 

1  Howard  v.  Dill,  7  Ga.  52.  Contra,  in  Kentucky,  Mitchill  v.  Franklin, 
3  J.  J.  Marsh.  477. 

2  Guild  V.  Rogers,  8  Barb.  503. 
8  Crocker  ■».  Mann,  3  Mo.  472. 

*  Powers  V.  Florance,  7  La.  Ann.  524;  Gray  v.  Rawson,  11  111.  527;  Owen 
v.  Boyle,  22  Me.  47;  Hall  n.  Amos,  5  T.  B.  Mon.  (Ky.)  89.  See  Allen  v. 
Agnew,  4  Zab.  (N.  J.)  443;  Briggs  v.  Large,  30  Pa.  St.  287;  Riddle  v.  Wei- 
don  5  Whart.  9.  But,  contra,  see  and  compare  Coburn  v.  Harvey,  18  Wis. 
147;  Laws  of  Wis.,  1866;  Trieber  v.  Knabe,  12  Md.  149. 

»  Bull  N.  P.  181;  Sketoe  v.  Ellis,  14  III.  75. 

«  Towns  V.  Boarman,  23  Miss.  186;  Richardson  v.  Vice,  4  Blackf.  13; 
Fcrsuson  v.  Moore,  2  Wash.  (Va.)  54. 

'  Sketoe  v.  Ellis.  14  111.  75. 


EIGHTS    OF    THE    LANDLORD.  393 

to  test  the  right  of  distress.  If  the  tenant  had  offered  se- 
curitj,^  or  if,  for  any  cause,  the  distress  was  wrongful,  the 
tenant  might,  upon  this  writ,  have  liis  goods  restored  to  him, 
upon  giving  bond  to  show  the  taking  was  illegaL^  The  plain- 
tiff was  under  no  obligation  to  bring  the  rent  tendered  into 
court,  as  the  question  was  not  upon  the  tender,  but  whether 
the  defendant  was  a  trespasser.  Bringing  the  money  into 
court  would  have  no  bearing  upon  the  question  as  to  whether 
the  defendant  acted  rightfully  in  making  the  distress,  or  was 
a  trespasser. 3  Proof  of  the  tender  was  sufficient.  A  tender 
of  rent  before  distress  makes  the  taking  unlawful.*  A  tender 
after  distress,  and  before  impounding,  makes  the  subsequent 
detention  unlawful. ^  In  either  of  these  cases,  the  tenant  may 
sustain  replevin  for  the  goods  distrained.  So,  where  there  was 
no  rent  due,  or  when  the  distress  was  for  services  which  the 
tenant  was  not  bound  to  render,  or  when  the  distress  was  of 
beasts  of  the  plow,  when  otlier  goods  could  be  found,  and  in 
some  other  cases,  the  distress  was  wrongful;^  or,  in  modern 
times,  where  the  distress  is  of  goods  by  law  exempt  from  seiz- 
ure, in  all  these  cases  the  tenant  may  sustain  replevin. 

§  721.  Rights  of  the  landlord.  Where  any  part  of  the  rent 
is  due  and  unpaid,  the  landlord  has  a  right  to  distrain.'  The 
fact  that  the  distress  was  excessive  or  oppressive  will  not  de- 
feat his  action,  nor  authorize  the  tenant  to  recover  in  replevin; 
though,  for  a  grossly  excessive  distress,  trespass  might  lie.8 
Where  the  property  distrained  is  exempt  by  statute,  the  ten- 
ant may  replevy;  but  he  must  make  that  the  ground  of  his 
suit;  and  where  the  distress  is  for  more  rent  than  is  due  the 

'  Hilson  V.  Blain,  2  Bailey,  (S.  C.)  168;  Ante,  §  5,  et  seq. 
2  Kimball  v.  Adams,  3  N.  H.  182;  Gilbert  ou  Replevin. 
'  Hunter  v.  La  Conle,  6  Cow.  730;  Home  v.  Lewin,  1  Ld.  Raym.  639;  S. 
C  2  Salk.  583. 

*  Gilbert  on  Replevin,  61. 

«  Firth  V.  Purvis,  5  T.  Rep.  227  and  432;  Six  Carpenters'  Case,  8  Coke  R. 
146;  S.  C,  1  Smitli's  Ld.  Cases,  62;  Browne  v.  Powell,  4  Bing.  230;  Hunter 
V.  La  Conte,  6  Cow.  (N.  Y.)  728. 

*  Brad  by  on  Distress,  259. 

'  Hare  i;.  Stegal  1,60  111.  380;  Lindleyt;.  Miller,  67  111.  248;  Smith  «.  Fyler, 
2  Hill.  (N.  Y.)  648;  Bates  v.  Nellis,  5  Hill,  (N.  Y.)  651. 
«  lb.    See  Smith  v.  Colson,  10  Johns.  91 ;  Bowser  v.  Scott,  8  Blackf.  86. 


394  REPLEVIN   OF   A    DISTRESS. 

landlord,  or  the  officer  who  executes  the  warrant,  he  is  h'ablo 
to  the  tenant  in  an  action. ^  The  taking  of  other  security  does 
not  defeat  the  landlord's  right  of  distress.^  Nor  is  a  previous 
demand  for  the  rent  usually  necessary. ^ 

§  722.  Sub-lessor's  liability.  "Where  a  sub-lessor  has  his 
goods  distrained  by  the  landlord  of  his  landlord,  he  cannot 
sustain  re;)levin  by  proving  payment  to  the  party  from  whom 
he  leased.^  This  rule,  however,  is  not  universal  in  its  appli- 
cation. Any  one  of  several  joint  tenants  ma}^  distrain  for  the 
whole  rent,  or  appoint  a  bailiff  for  the  others;  but  the  avowry 
in  such  case  must  lie  for  all.^ 

§  723.  Payment  to  landlord  who  is  a  joint  tenant.  Where 
the  tenant  leases  from  tenants  in  common,  payment  of  rent  to 
one  is  not  necessarily  a  discharge  of  the  rent;  the  others  may 
distrain  for  their  share.*" 

§  724.  Rights  of  the  tenant.  The  landlord  cannot  distrain 
twice  for  the  same  rent,  where  the  first  distress  was  upon  goods 
sufficient  to  pay  the  rent,  even  when  the  first  distress  was  vol- 
entarily  abandoned;''  nor  where  he  might  have  taken  sufficient 
at  first. 8  The  law  will  not  suffer  the  tenant  to  be  needlessly 
vexed.  The  landlord  cannot  distrain  fixtures  of  the  tenant,^ 
or  chattels  in  the  actual  use  of  the  tenant  or  other  person,  or 
goods  delivered  to  the  tenant  to  be  worked  up  in  his  trade  for 
another;!"  nor  goods  which  are  by  law  exempt;  nor  articles 
worn  upon  the  person  of  the  defendant ;!  ^  nor  can  a  distress  be 
permitted  to  take  chattels  after  they  have  been  actually  levied 

•  McElroy  v.  Dice,  17  Pa.  St.  1G3. 

«  Bates  V.  Nellis,  5  Hill,  (N.  Y.)  651. 

8  Mallam  v.  Arden,  10  Bing.  299;  Giles  v.  Elsworth,  10  Md.  333. 

*  Quinn  v.  Wallace.  6  Whart.  (Pa.)  452. 

6  Taylor,  L.  &  T.  419.     See  Robinson  v.  Hofman,  4  Bing.  563. 

«  Decker  v.  Livingston,  15  Johns.  479.  See  Robinson  v.  Hofman,  4  Bing. 
562. 

'  Dawson  v.  Cropp,  1  Man.  G.  &  S.  962.  See  Ridge  v.  Wilson,  1  Blackf. 
(Ind.)  409. 

«  Wallis  V.  Savill,  2  Lutw.  493. 

»  Gorton  v.  Falkner,  4  Durnf.  &  E.  567. 

'«  Gisbourne  v.  Hurst,  1  Salk.  249;  Thompson  v.  Mashitcr,  1  Bing.  283; 
Gibson  v.  Ireson,  43  E.  C.  L.  621. 

"  Maxham  v.  Day,  16  Gray,  (Mass.)  213. 


DISTINCTION   BETWEEN    AN   AVOWRY    AND    COGNIZANCE.      395 

on  and  taken  bj  an  officer  with  valid  execution  against  the 
tenant.  But  the  right  of  distress  is  not  lost  by  a  receipt  in 
full  for  all  rent  due,  when  the  only  payment  for  which  the 
receipt  was  given  was  an  order  on  a  third  person,  who  had  no 
funds  of  the  person  ordering,  i  Neither  can  distress  be  made 
on  the  day  the  rent  falls  due;  the  tenant  has  the  whole  of  that 
day  in  which  to  pay.^ 

§  725.  The  avowry  and  cognizance.  Where  the  distress  is 
for  any  cause  wrongful,  the  tenant  may  replevy  the  goods.  If 
the  landlord  wishes  to  contest  the  replevin  and  to  secure  a  return 
of  the  goods,  he  must  avow;  or  if  the  distress  was  made  by  a 
bailiff,  he  must  make  cognizance,  and  so  set  up  the  justness 
of  the  taking.  These  were  originally  the  most  important,  and, 
in  fact,  almost  the  only  pleadings  of  the  defendant  in  replevin. 
They  are  still  common  in  cases  of  replevin  of  a  distress. ^  But 
the  comparative  infreqnency  of  such  cases  has  reduced  the  use, 
as  well  as  the  importance  of  these  pleas.  There  seems  to  be  a 
distinction  between  an  avowry  by  joint  tenants  and  tenants  in 
common.  Joint  tenants  must  join  in  an  avowry;  tenants  in 
common  must  sever.  Each  should  avow  for  his  share*  If 
one  tenant  in  common  should  release,  it  is  no  discharge  as  to 
the  others.  5 

§  726.  Distinction  between  an  avowry  and  cognizance.  An 
avowry  was  where  the  defendant  admitted  the  taking  and  justi- 
fied under  some  right  of  distress,  as  for  rent  due,  and  demanded 
a  return  of  the  goods.  When  the  defendant  sets  up  a  taking 
by  distress  in  his  own  right  it  is  called  an  avowry.  When  he 
justifies  under  the  right  of  another,  by  whose  authority  he 
acted,  it  is  called  cognizance;  the  former  is  called  an  avowant; 
the  latter  a  cognizor.  The  diflference  between  them  is  formal 
only.     When  by  mistake  a  party  avowed  when  he  should  have 

>  Printems  v.  Helfried.  1  Nott  &  McC.  (S.  C.)  187. 

'  Gano  V.  Hart,  Hardin,  (Ky.)  297;  Johnson  v.  Owens,  2  Cranch.  C.  C. 
160. 

»  Howard  v.  Black,  49  Vt.  10;  Lindley  v.  Miller,  67  111.  244;  Simpson  v. 
McFarland,  18  Pick.  430;  Quincyi?.  Hall,  1  Pick.  361. 

*  Stedman  v.  Batts,  1  Ld.  Raym.  64;  Harrison  «.  Barnby,  5  Term,  346; 
Ci:lly  V.  Spearman,  2  H.  Bla.  386. 

*  Decker  v.  Livingston,  15  Johns.  480. 


396  REPLEVIN    OF   A   DISTRESS. 

made  cof^nizance,  the  mistake  was  imraateria?  and  amendab]- 
without  delay.  1 

§  727.  The  exactness  required  in  these  pleas.  By  an  avowry 
or  by  making  cognizance  tlie  defendant  becomes  a  plaintiff, 
that  is,  he  sues  for  the  right  to  distrain;  his  pleading  is  in 
the  nature  of  a  declaration:  and,  therefore,  as  much  strictness 
is  required  in  such  pleading  as  in  a  declaration;  it  must  be 
good  in  every  particular. ^  The  right  to  distrain  was  an  extra- 
ordinary power;  the  authority  upon  wliich  it  was  made  was 
required  to  be  specifically  shown  in  the  pleading  which  at- 
tempted to  justify  it,3  and  required  to  be  sustained  by  proof.* 
An  avowry  or  cognizance  must  admit  the  taking  in  express 
terms,  though  if  it  contain  an  implied  adiniasion  it  will  be 
good  after  verdict  without  an  admission  in  terms.s 

§  728.  The  same.  Substance  of  these  pleas.  By  this  pler^d- 
ino-  the  avowant  must  state  sufficient  to  make  good  his  right 
of  seizure  against  the  plaintiff  who  is  admitted  to  be  the  real 
owner  of  the  goods.  The  avowant  asserts  and  defends  upon 
his  rio-ht  to  seize  the  goods,  and  states  the  grounds  of  the 
rio-ht  in  his  avowry.^  Formerly  the  avowry  was  required  to 
show  that  the  avowant,  or  some  one  from  whom  he  inherited 
the  estate  out  of  which  the  rent  of  the  land  arose  was  seized, 
and  also  to  show  the  lease  under  which  the  plaintiff  in  replevin 
held  from  the  avowant,  as  well  as  rent  due  and  in  arrear.  But 
after  alienations  became  frequent,  and  of  small  parcels  of  land, 
the  fines  to  the  lord  therefor  were  not  always  paid;  conse- 
ouently  the  lord  did  not  always  know  who  his  tenants  were. 
By  Statute  21  Henry  VIII.,  Ch.  19,  §  3,  the  lord  was  per- 
mitted to  avow  for  a  distress  taken  within  his  fee,  and  by  11 

>  Brown  v.  Bissett,  1  Zab.  (21  N.  J.)  46;  Wheadon  v.  Sugg,  Cro.  Jac.  3T3. 

2  Pike  V  Gandell,  9  Weud.  149;  Wright  v.  Williams,  2  Wead.  632;  Yates 
V.  Fassett,  5  Deaio,  31 ;  Crosse  v.  Bilson,  6  Mod.  103 ;  Coaa  v.  Bowles,  1 

Show.  165. 

3  Goodman  v.  Aylin,  Yelv.  148;  Hawkins  v.  Eckles,  3  Bos.  &  Pul.  359; 
Weeks  v.  Peach,  1  Salk.  179;  Same  v.  Same,  1  Ld.  Raym.  679;  Gilbert  on 
Rep.  133,  144;  McPherson  v.  Melhinch,  20  Wend.  671. 

4  Lavigne  v.  Russ,  36  Miss.  326;  Waltman  v.  Allison,  10  Pa.  St.  465. 
6  Gaines  v.  Tibbs,  6  Dana,  (Ky.)  144. 

6  Hellings  v.  Wright,  14  Pa.  St.  375;  Simcoke  v.  Frederick,  1  Ind.  51;  Tru- 
lock  V.  Rigsby,  Yelv.  185;  Godfrey  v.  Bullin,  Yelv.  180. 


TERMS   OF   THE    LEASE.  397 

George  II.,  Ch.  19,  §  22,  to  avow  generally,  witliont  setting 
np  his  title;  still  lie  was  required  to  aver  title  and  sei;i2ure.i 
It  was  still  necessary,  also,  to  set  out  the  lease,  and  to  state 
amount  of  rent  reserved  and  when  payable,^  and  to  show  that 
the  landlord  was  seized  of  the  premises,  and  that  the  relation  of 
landlord  and  tenant  existed  ;3  so  an  avowry  by  three  and  proof 
of  a  demise  by  one  of  them,  is  not  sufficient.* 

§  729.  The  rent;  how  payable;  must  be  certain.  The  rent 
"was  not  necessarily  payable  in  mone,y,^  but  might  be  payable 
in  services,^  or  anything  susceptible  of  valuation''  which  was 
certain,  or  which  might  be  reduced  to  a  certainty ;»  but  unless 
there  was  a  certain  rent  there  was  no  right  to  distrain. ^  The 
time  for  payment  must  also  be  fixed,  unless  the  rent  was  fixed 
and  in  amount,  and  unless  the  time  for  payment  was  certain 
the  tenant  could  never  know  how  much  or  when  to  pay,  and 
so  could  not  be  in  default-^" 

§  730.  The  terms  of  the  lease.  An  avowry  for  rent  should 
state  the  terms  of  the  lease  as  they  will  appear  in  proof, ^  *  the 
amount  of  rent,  and  when  it  was  due.12  It  must  set  out  the 
liolding  from  the  plaintiff;  it  need  not  state  the  plaintiff's 
title,^  3  jjut  it  must  show  that  there  was  a  tenancy  and  the  avow- 

'  Harrison  «.  M'Intosh,  1  Johns.  384;  Franciscus  v.  Reigart,  4  Watts,  117; 
Taylor  v.  Moore,  3  Har.  (Del.)  6. 

"  Forty  V.  Imber,  6  East.  434 ;  Caldwell  v.  Cleadon,  3  Har.  (Del.)  420 ;  Scott 
V.  Fuller,  3  Pa.  55;  Gilbert  on  Rep..  133,  et  seq.;  Helser  v.  Pott,  3  Barr.  (Pa.) 
179;  Valentine  v.  Jackson,  9  Wend.  302;  Steele  v.  Tbompson,  3  Penn.  34; 
Phil  pott  V.  Dobbinson,  6  Bing.  104. 

3  Bain  v.  Clark,  10  Johns.  424. 

*  Ewing  V.  Vanarsdale,  1  S.  &  R.  (Pa.)  370. 
»  Myers  v.  Mayfieid,  7  Bush,  (Ky.)  212. 

•  Valentine  v.  Jackson,  9  Wend.  802;  Smith,  v.  Colson,  10  John.  91. 
"*  Fraser  v.  Davie,  5  Rich.  (S.  C )  Law,  59. 

«  Valentine  v.  Jackson,  9  Wend.  302. 

9  Grier  v.  Cowan,  Addis,  (Pa.)  347;  Myers  v.  Mayfleld,  7  Bush.  (Ky.)  212; 
Smith  V.  Fyler,  2  Hill,  (548. 

'0  Wells  V.  Hornish,  3  Pen.  &  W.  (Pa.)  30. 

"  Pliipps  V.  Boyd,  54  Pa.  St.  342;  Taylor  v.  Moore,  3  Har.  (Del.)  6;  Tice 
t>.  Norton,  4  Wend.  6(57. 

"  Wells  V.  Hornish,  3  Pen.  &  W.  (Pa.)  30. 

"Decker  v.  Livingston,  15  Johns.  479;  Wright  ©.  Mathews,  2  Blackf. 
187. 


398  REPLEVIN   OF   A    DISTRESS 

ant  was  the  landlords  It  must  also  show  the  amount  of  rent 
and  that  it  is  due  and  in  arrear.^  It  need  not  state  the  exact 
amount  due,  as  that  is  not  necessary  to  a  certain  and  definite 
description  of  the  contract,^  the  object  of  this  certainty  being 
to  state  the  contract  with  certainty,  so  that  it  may  be  intro- 
duced in  proof. 

§  7:31.  The  usual  plea  to  replevin  of  a  distress.  In  cases 
where  the  replevin  is  for  a  distress  for  rent,  avowry  seems  to 
be  the  proper  and  regular  mode  of  pleading'*  at  the  present 
time;  and  the  rules  substantially  as  before  stated  apply.  It 
has  been  said  that  the  avowry  should  state  that  the  goods 
seized  were  those  of  the  plaintiff,  but  in  point  of  fact  this  is 
immaterial  and  need  not  be  proved,  as  the  landlord  has  the 
right  in  many  cases  to  distrain  goods  of  persons  other  than 
the  tenant,  provided  they  are  found  upon  the  premises. ^  It 
is,  however,  necessary  to  allege  that  the  goods  were  seized 
upon  the  premises,  or  within  the  limits  where  distress  is  per- 
mitted, and  that  they  are  liable  to  distress.^  Joint  tenants 
must  join  in  an  avowry,''  but  tenants  in  common  must  avow 
severally.^ 

§  732.  Form  of  avowry  or  cognizance.  An  avowry  or 
coo-nizance  need  not  show  that  tlie  distress  was  made  by  an 

o  ^ 

*  Nicholas  v.  Dusenbury,  2  Comst.  287. 

»  Smith  V.  Aurand,  10  S.  &  R.  93;  Wright  v.  Williams,  5  Cow.  345;  Lan- 
der  V.  Ware,  1  Strobh.  (S.  C.)  15. 
3  Barr  «.  Hughes,  44.  Pa.  St.  517. 

*  Williams  v.  Smith,  10  S.  &  R.  (Pa.)  202;  Weidel  v.  Roseberry,  13  S.  & 
R.  178;  Hill  v.  Stocking,  6  Hill,  277;  Lindley  v.  Miller,  67  III.  244.  The 
defendant  sought  to  justify  his  taking  a  distress  for  rent;  instead  of  the 
usual  form  of  avowry  he  has  adopted  the  form  of  a  plea  in  bar,  and  seeks 
by  this  departure  from  the  precedents  to  deprive  the  plaintiff  of  more  than 
one  answer  to  each  justification.  The  experiment  cannot  succceed.  Mc- 
Pherson  v.  Melhinch,  20  Wend.  671. 

*  Musprat  v.  Gregorj',  3  Mees.  &  W.  677 ;  Spencer  v.  M'Gowen,  13  Wend. 
256;  Blanche  v.  Bradford,  38  Pa.  St.  344.  This  was  the  common  law,  but  it 
has  been  thought  necessary  to  repeal  or  modify  it  in  most  of  the  Slates  of 
the  Union. 

6  Asbell  V.  Tipton,  1  B.  Mon.  (Ky.)  300. 

*  Stedman  v.  Bates,  1  Ld.  Raym.  64. 

*  Bradby  on  Distress,  62 ;  Harrison  v.  Barnby,  5  Term  R.  246.  See  Jones 
V.  Gundrim,  3  W.  &  S.  (Pa.)  531. 


PLEAS   TO    AN    AVOWRY.  399 

officer,  or  tliat  any  affidavit  was  attached  to  the  warrant  of 
distress;  even  when  such  affidavit  is  required  hj  statute,  it 
does  not  form  any  part  of  the  pleadings. ^ 

§  733.  Pleas  to  an  avowry  or  cognizance.  An  avowry  or 
cognizance  partakes  of  the  nature  of  a  dechiration,  as  well  as 
a  plea.  So  far  as  it  is  an  answer  to  the  plaintiff's  claim  it  is 
a  plea;  so  far  as  it  demands  a  return  it  is  in  the  nature  of  a 
declaration:  the  plaintiff  may  plead  as  many  separate  defenses 
to  it  as  he  deems  proper,^  and  to  an  avowry  he  may  plead  an 
abuse  of  the  defendant's  proceedings,  or  that  they  have  been 
irregular. 3  Plea  to  an  avowry  is  governed  by  the  rules  appli- 
cable to  other  pleas  to  declaration;  it  must  answer  all  it 
professes  to;  each  plea  should  only  answer  one  avowry.*  The 
pleas  may  deny  the  tenancy  set  up  in  the  avowrj',  or  may  show 
that  the  rent  is  not  due;  or  that  the  goods  are  privileged,  or 
exempt  from  distress;  or  that  the  goods  are  the  property  of 
a  stranger. 

§  73i.  Plea  of  set-off  to  an  avowry.  The  plaintiff  in  re- 
plevin cannot  off-set  accounts  against  the  distrainor  unless  it 
be  such  matters  as  grow  out  of  the  contract  of  leasing. "  The 
action  is  in  form  an  action  ex-delicfo,  and  seeks  damages  for 
the  unlawful  taking  of  personal  property,  and  it  is  no  justifi- 
cation for  such  taking  that  the  defendant  is  indebted  to  the 
plaintiff.  The  landlord's  indebtedness  to  the  tenant  would 
not  take  away  his  right  to  distrain  for  rent.  But  this  will  not 
prevent  the  tenant  from  showing  an^'thing  which  goes  to 
prove  that  the  rent  was  not  due.  So,  when  the  landlord  leased 
a  tavern  and  wagon  yard,  and  agreed  to  put  cinders  on  the 
yard,  and  did  not  do  so,  it  was  held  the  rent  was  conditioned 
in  part  upon  the  agreement  to  put  the  premises  in  better 
order,  and  the  damage  was  allowed  to  reduce  the  rent.^     But 

•  Webber  v.  Shearman,  6  Hill.  32. 

•■"  Webber  o.  Sheiiruian,  6  Hill.  (IST.  Y.)  31 ;  McPherson  v.  Melhinch,  20 
Weud.  671. 

3  Osgood  V.  Green,  10  Post.  (K  H.)  210. 

■•  Nichols  V.  Duseubury,  2  Comst.  287;  Roberts  v.  Tennell,  4  Litt.  (Ky.) 
286. 

5  Beyer  v.  Fcnstermaclier,  2  Wliart.  (Pa.)  95, 

«  Fairman  v.  Pluck,  5  Watts,  (Pa.)  516. 


400  EEPLEVIN    OF   A    DISTKESS. 

he  may  claim  damages  against  the  landlord  on  account  of  a 
breach  of  the  contract  of  leasing, ^  or  payment  or  part  pay- 
ment of  the  rent;3  or  may  offset  any  demand  against  the 
landlord  arising  out  of  the  contract  of  leasing,  and  properly 
the  subject  of  recoupment ;3  or  may  plead  and  show  nothing 
in  arrears.  But  he  cannot  set  off  another  claim  against  the 
landlord ;  the  only  questions  to  be  decided  in  this  action  relate 
to  tenancy  and  the  rent  due.'* 

§  735.  Pleas  to  an  avowry;  averments  in.  Plea  to  an 
avowry  need  not  allege  any  place  of  taking,  when  the  avowry 
justifies  the  taking  at  the  place  alleged  in  the  declaration. ^ 
Plea  that  the  defendant  drove  the  cattle  three  miles  to  a  public 
pound,  but  does  not  allege  a  nearer  place,  is  bad.^  So  a  plea 
to  an  avowry  must  show  that  nothing  is  in  arrear  for  rent,  or 
it  will  be  defective.  When  the  plea  claimed  that  the  land- 
lord had  neglected  to  keep  his  covenants  for  repairs,  and  that 
the  damages  resulting  therefrom  more  than  equaled  the  rent, 
the  plea  should  have  so  stated;  a  mere  claim  of  damages, 
though  in  several  sums,  will  not  be  sufficient  unless  it  be 
followed  by  an  averment  that  the  sums  so  due  equal  or  exceed 
the  rent  claimed;  otherwise  it  will  not  appear  affirmatively  but 
some  rent  is  due.'  Defendant  avowed  and  justified  the  de- 
tention under  his  right  of  lien  as  the  manufacturer;  it  was  not 
denied  but  this  was  well  avowed,  but  the  plea  to  the  avowry 
set  np  new  matter  that  the  work  was  done  under  a  contract 
which  precluded  a  lien;  held,  proper. ^  Such  plea,  however, 
must  set  up  the  agreement  with  certainty. 

§  736.  Plea  to  cognizance,  denying  authority  of  bailiff. 
"Where  the  defendant  made  cognizance  as  bailiff  to  J.,  the 
plaintiff  pleaded  that  he  was  not  Bailiff  J.    The  plea  was  held 

1  Lindley  v.  Miller,  67  111.  244. 

«  Sapsford  v.  Fletcher,  4  Term.  R.  512;  Wolgamot  v.  Bruner,  4  Har.  & 
McH.  (Md.)  70  and  89. 

2  Streeter  v.  Streeter,  43  111.  155. 

•  Anderson  v.  Reynolds,  14  S.  &  R.  439. 
»  Jv.dd  t.  Fox,  9  Cow.  2G3. 

•  Adams  v.  Adams,  13  Pick.  385. 
'  Lindley  ?).  Miller,  67  111.348. 

•  Curtis  V.  Jones,  3  Denio,  590. 


EFFECT    OF   REPLEVIN    ON    LANDLOKd's   LIEN.  401 

good ;  for  thougli  it  may  be  that  J.  had  a  right  to  distrain,  yet 
a  stranger  witliout  his  authority  could  not.^ 

§  737.  Plea  of  "  non-tenure,"  or  "  nothing  in  arrear." 
To  an  avowry  for  rent,  the  defendant  (the  plaintiff  in  replevin,) 
may  plead  non  tenure,  or  nothing  in  arrear.  The  former  of 
these  pleas  denies  the  tenancy;  the  latter  admits  the  tenancy, 
but  denies  that  rent  is  due.^ 

§  738.  Same  rules  apply  to  cognizance.  Substantially  the 
same  rules  apply  to  making  cognizance  as  to  an  avowry,  ex- 
cept in  the  latter  case  the  cognizor  sets  up  the  title  of  the 
landlord  and  claims  to  act  as  his  bailiff,  and  not  in  his  own 
right.  3 

§  739.  ESfect  of  replevin  on  landlord's  lien.  "W^e  have  seen 
that  by  distraining  the  landlord  acquires  a  lien  to  satisfy  the 
amount  of  rent  due.  By  replevin  the  lien  of  the  landlord 
80  acquired  is  gone;  i.  e.,  the  tenant,  by  replevying,  retakes 
his  former  title,  and  the  landlord  must  look  to  the  security 
upon  the  bond.*  The  landlord  may,  however,  have  judgment 
for  a  return  of  the  goods,  and  under  a  writ  of  return  he  may 
regain  possession;  in  such  case  he  may  sell  them  to  satisfy  his 
lien.  As  against  the  plaintiff  his  lien  or  right  to  return  may 
be  good,  but  not  as  against  strangers  acquiring  title  in  good 
faith.  5 

'  Trevilian  «.  Pyne,  1  Salk.  107. 

»  Bloomer  v.  Juhel,  8  Wend.  448. 

3  Webber  v.  ybearman,  6  Hill,  (N.  Y.)  31 ;  Ch.  PI. ;  Steph.  PI.  332,  376. 

*  Speer  v.  Skinner,  35  111.  302;  Bruner  v.  Dyball,  42  III.  37;  Burkle  v. 
Luce,  6  Hill,  559 ;  Woglam  v.  Cowperthwaite,  2  Dall.  68,  131 ;  Acker  v. 
White,  25  Wend.  614. 

»  Burkle  v.  Luce,  6  Hill,  558;  Acker  v.  White,  25  Wend.  614. 
26 


402 


VERDICT    AND   JUDGMENT. 


CHAPTEE  XXIY. 

THE  VERDICT  AND  JUDGMENT. 


Section. 
The  verdict         .        .        .        .740 
Court  may  correct  the  form,  but 
cannot  change  the  substance .  741 

The  same 743 

The  jury  must  pass  upon  all 

questions  at  issue  .  .  .  743 
May  find  for  both  parties  .  .  744 
Each  party  may  submit  issues 

to  the  jury  ....  745 
"  Not  guilty,"  what  responsive 

to 746 

Statutory  exceptions  .        .        .  747 
In  justice  courts         .        .        .  748 
Illustrations  of  the   exactness 
required  in  the  verdict  .        .  749 

The  same 750 

Finding  need  not  be  in  express 

words 751 

The  same.  Illustrations  .  .  753 
The  verdict  may  be  general  if 

it  cover  all  the  issues     .        .  753 
The  same.    Illustrations  .        .  754 
Verdict  should  not  merge  dif- 
ferent issues    ....  755 
Separate  defendants  may  have 

separate  verdicts  .  .  .  756 
Verdict  must  be  certain  .  .  757 
The  same.  Illustrations  .  .  758 
Must  be  consistent  .  .  .  759 
Value  of  property;  when  must 

be  found 760 

Value  of  separate  articles  .  761 
Conditional  verdict  .  .  .  763 
Value  where  the  party's  interest 

is  limited         ....  763 
Verdict  for  damages;  when  es- 
sential      764 

The  same 765 


Section. 
The  judgment  ....  766 
Should  embrace  all  parties  and 

all  issues 767 

The  same 768 

Must  be  certain  ....  769 
Judgment  upon  default     .        .  770 
When  property  has  been  deliv- 
ered    plaintiff    cannot   have 

value 771 

Judgment  for  value  or  delivery  772 
Judgment  in  the  alternative  for 

the  goods  or  for  their  value  .  773 
Exceptions  to  this  rule  .  .  774 
Judgment  for  each  party,  for 

different  parts  of  the  goods  .  775 
Separate  judgment  as  to  sepa- 
rate defendents       .        .        .  776 
Order  for  delivery  part  of  the 

judgment         ....  777 
Defendant  entitled  to  reasona- 
ble time  to  comply  with  the 
judgment  for  return        .        .  778 
Effect  of  payment  of  judgment 

for  value 779 

The  same 780 

Judgment  of  non-suit  does  not 

affect  title  .  .  .  .781 
Judgment  of  dismissal  .  .  783 
Illustrations    of   the   effect    of 

judgment  ....  783 
Judgment  for  value  of  limited 

interest 784 

Judgment  for  value  on  count  in 

trover 785 

When    property  is  lost,  jndg- 

ment  for  return  immaterial   .  786 
Judgment   for   value   in   such 
cases 787 


COUKT   MAY    CORRECT   THE   FORM.  403 

§  740.  The  verdict.  There  is  probably  no  form  of  action 
where  more  exactness  is  required  in  the  verdict  than  in 
replevin.  In  other  actions  the  issues  are  nsually  few  and 
simple,  while  in  replevin  they  may  be  numerous  and  some- 
times complex.  The  verdict,  therefore,  requires  the  most 
careful  attention. 

§  741.  Court  may  correct  the  form,  but  cannot  change  the 
substance.  The  court  is  authorized,  and  will,  in  all  cases, 
when  it  is  necessary,  correct  mere  formal  mistakes  in  the  ver- 
dict, so  as  to  make  it  correspond  with  the  true  finding  of  the 
jury  and  the  form  required  by  law;^  but  cannot  correct  a 
verdict  so  as  to  change  in  any  way  the  intention  of  the  jury. 
Each  party  has  a  right  to  the  verdict  of  the  jury  upon  the 
issues  presented,  and  if  it  is  not  relevant  to  the  issues  or 
erroneous,  the  court  may  set  it  aside,  but  cannot  change  it.^ 
Thus  the  court  would  have  no  right  to  add  nominal  damages, ^ 
or  a  statement  of  the  value  of  the  property,  after  the  verdict 
was  rendered.^  So,  where  the  verdict  is  for  the  plaintiff  with- 
out finding  the  sum  due,  judgment  for  the  sum  demanded  is 
error.  ^ 

§  742.  The  fame.  It  is  in  the  power  of  the  court,  after 
the  verdict  has  been  presented,  and  before  the  jury  is  dis- 
charged, to  direct  them  to  put  it  into  form,  or  the  court  may 
instruct  them  to  render  a  more  specific  verdict,  or  to  pass 
upon  issues  duly  presented  which  they  have  failed  to  pass 
upon.     Such  course  is  proper,  and  in  many  cases  necessary.  ^ 

§  743.  The  jury  must  pass  upon  all  questions  at  issue.  The 
jury  are  not  required  to  pass  upon  any  questions  which  are 

'  Donaldson  v.  Johnson,  3  Chand.  (Wis.)  160;  O'Brien  v.  Palmer,  49  111, 
73;  Osgood  v.  McConnell,  32  111.  75;  Patterson  v.  United  States,  3  Wheat. 
231;  Thompson  v.  Button,  14  John's  R.  86;  O'Keefe  v.  Kellogg,  15  111.  351. 

2  Coit  V.  Waples,  1  Minn.  134;  Frazier  v.  Laughlin,  1  Gilm.  347;  Moore  v. 
Devol,  14  Iowa,  113;  Hinckley  v.  West,  4  Gilm.  136;  Wallace  v.  Hilliard, 
7  Wis.  627;  Ford  v.  Ford,  3  Wis.  399;  Dunbar  v.  BiUle,  7  Wis.  144. 

3  Bemus  v.  Beekman,  3  Wend.  671. 

*  Wallace  v.  Hilliard,  7  Wis.  637 ;  Taylor  v.  Hathaway,  39  Ark.  597 ; 
Eaton  V.  Caldwell,  3  Minn.  134. 

*  Taylor  v.  Hathaway,  39  Ark.  597.  Compare  Burhans  v.  Tibbitts,  7  How, 
Pr.  Rep.  31,  74. 

»  Hunt  V.  Bennett,  4  G.  Greene,  (Iowa,)  515. 


404  VERDICT    AND   JUDGMENT. 

not  in  issue,  nor  which  are  admitted  by  the  pleading;  but  simpij 
npon  those  which  are  submitted  for  their  determination. ^ 

§  744.  May  find  for  both  parties.  Where  the  plaintiff 's 
claim  is  for  several  articles,  it  may  be,  and  usually  is,  divisible. 
The  defendant  may  set  up  as  many  separate  defenses,  material 
to  the  issues,  as  he  judges  proper,  and  the  verdict  may  be  in 
favor  of  the  plaintiff  for  a  portion  of  the  property  and  for  the 
defendant  for  the  remainder,^  as  the  facts  and  the  rigiits  of  the 
several  parties  require. ^ 

§  745.  Each  party  may  submit  issues  to  the  jury.  The 
verdict  must  be  responsive  to  all  the  issues  presented  by  the 
pleadings.  Each  party  has  a  right  to  submit  such  material 
issues  by  proper  pleading  as  he  shall  think  necessary  for  the 
protection  of  his  interests,  and  has  the  right  to  have  the  jury 
pass  upon  them.  A  failure  of  the  jury  to  do  so  will  justify 
the  court  in  setting  aside  the  verdict  and  granting  a  new  trial. 
When  the  plea  was  non  cepit  and  the  verdict  was  "guilty  of 
unjust  detention,"  it  did  not  dispose  of  the  issue  tendered  in 
the  plea.*  When  a  plea  of  general  issue  and  plea  of  property 
are  interposed,  a  simple  finding  of  "  not  guilty  "  is  not  respon- 
sive to  the  issue.  In  such  cases  a  venire  de  novo  will  be 
ordered. 5     The  proper  practice  in  case  the  verdict  omits  to 

'  Patterson  t.  United  States,  2  Wheat.  221 ;  Wilcoxon  c.  Annesley,  23  Ind. 
287;  Woodburn  v.  Chamberlin,  17  Barb.  446;  Dana  v.  Bryant,  1  Gilra.  104; 
Briggsv.  Dorr,  19  Johns.  95;  Jack  v.  Martin,  12  Wend.  316;  Machette  v. 
Wan  less,  1  Col.  225. 

•^  Hotchkiss  V.  Ashley,  44  Vt.  195;  Edelen  v.  Thompson,  2  Har.  &  G. 
(Md.)  32;  Powell  v.  Hinsdale,  5  Mass.  343;  Poor  v.  Woodburn,  25  Vt.  235; 
Brown  v.  Smith,  1  N.  H.  36;  Wright  v.  Mathews.  2  Black,  (Ind.)  187; 
Dowell  V.  Richardson,  10  Ind.  573;  O'Keefe  v.  Kellogg,  15  111.  351;  Wil- 
liams V.  Beede,  15  N.  H.  483. 

3  Pratt  V.  Tucker,  67  111.  346. 

4  Bemus  v.  Beekman,  3  Wend.  667;  Smith  v.  Phelps,  7  Wis.  211 ;  Heeron 
•D.  Beckwith,  1  Wis.  22;  Ronge  v.  Dawson,  9  Wis.  246;  Childs  v.  Childs,  13 
Wis.  17;  Hanford  v.  Obrecht,  38  111.  493;  Patterson  v.  United  States,  2 
Wheat.  225. 

5  Wallace  v.  Hilliard.  7  Wis.  627;  Bemis  v.  Wylie,  19  Wis.  318;  Ronge  o. 
Dawson,  9  Wis.  246;  Smith  v.  Phelps,  7  Wis.  211;  Johnson  v.  Howe,  2 
Gilm.  346;  Rose  v.  Hart,  12  111.  378;  Smith  v.  Wood,  31  Md.  293.  A  ver- 
diet  of  no  cause  of  action,  is  not  responsive  to  the  issues  of  taking,  deten- 
tion, and  property  in  defendant.    Ford  v.  Ford,  3  Wis.  399. 


"not  guilty."  405 

pass  upon  all  the  issues  is  bj  a  motion  for  a  venire  de  novo, 
not  by  a  motion  for  a  new  trial.  A  venire  de  novo  is  granted 
for  a  defect  appearing  upon  the  record ;  a  new  trial  for  some 
matter  outside  of  it.i 

§  746.  "  Not  guilty ; "  what  responsive  to.  There  is,  strictly 
speaking,  no  plea  of  general  issue  in  replevin.  Where  the 
charge  is  for  taking  only,  a  plea  of  non  cepit  is  equivalent  to 
a  general  issue;  if  the  charge  is  for  detaining,  the  plea  of  noi} 
detinet  has  the  same  effect,  A  verdict  of  not  guilty  would  be 
responsive  to  either.^  When  the  pleas  were,  1,  non  cepit,  2, 
property  in  defendant,  and,  3,  in  a  stranger,  verdict  of  not 
guilty  was  responsive  to  non  cepit  only,  and  did  not  authorize 
any  judgment  upon  the  other  pleas. ^ 

§  747.  Statutory  exceptions.  In  some  of  the  States,  by 
statute,  the  plea  of  non  detinet  or  7ion  cepit  puts  in  issue  not 
only  the  detention,  but  the  right  of  property  in  the  plaintiff; ^ 
while,  by  the  common  law,  non  cepit  and  non  detinet  admit 
the  property  to  be  in  the  plaintiff,  but  deny  the  taking  and 
detention  respectively. ^  Where  the  statute  makes  the  plea  of 
non  detinet  a  denial  of  property  in  the  plaintiff,  a  verdict  of 
not  guilty  upon  that  plea  must  be  regarded,  it  would  seem,  not 
only  as  responsive  to  the  issue  upon  the  detention,  but  upon 
the  question  of  property  as  well. 

§  748.  Injustice  court.  In  a  justice  court,  where  the  plead- 
ings are  oral,  the  same  strictness  is  not  required;  and  where 
the  case  was  an  appeal  from  such  court,  a  verdict  finding  the 

*  Bosseker  v.  Cramer,  18  Ind.  45.  When  the  verdict  did  not  pass  upon 
the  whole  issue,  but  left  part  of  the  facts  denied  by  the  plea  unnoticed,  it 
■was  bad,  and  judgment  was  reversed.  Miller  v.  Trets,  1  Ld.  Raym.  324. 
A  verdict  is  bad  if  it  vary  from  the  issue  submitted  in  any  substantial 
matter,  or  if  it  find  only  part  of  the  issues  submitted.  Patterson  v.  United 
States,  2  Wheat.  225. 

=  Dole  V.  Kennedy,  38  111.  284;  Bourk  ».  Riggs,  38  111.  321. 

3  Hanford  v.  Obrecht,  49  111.  151 ;  Hanford  v.  Obrecht,  38  111.  493.  See, 
also,  Bemus?).  Beekman,  3  Wend.  667;  Sprague  v.  Kneeland,12  Wend.  164; 
Boynton  v.  Page,  13  Wend.  432 ;  Machette  v.  Wanless,  1  Col.  225. 

*  Ford  V.  Ford,  3  Wis.  399;  Timp  v.  Dockham,  32  Wis.  151;  Walpole  v. 
Smith,  4  Blackf.  (Ind.)  304;  Noble  v.  Epperly,  6  Port.  (Ind.)  411;  Plain- 
field  V.  Batchelder,  44  Vt.  9;  Loop  v.  Williams,  47  Vt.  415. 

*  See  plea  of  non  cepit.    Ante,  Chap.  22. 


4:06  VERDICT    AND   JUDGMENT. 

defendant  guilty,  though  not  strictly  in  form,  was  regarded  as 
equivalent  to  finding  property  in  plaintiff. i 

§  749.  Illustrations  of  the  exactness  required  in  the  verdict. 
The  defendant  pleaded  that  he  had  not  taken  or  detained  tlie 
proj3erty;  also,  property  in  a  stranger,  and  property  in  defend- 
ant; the  plaintiff  joined  issue  upon  the  first,  and  replied  to 
the  second  and  third  pleas.  The  jury  returned  a  verdict,  "  we 
find  the  property  to  be  in  the  plaintiff."  Held,  the  verdict 
did  not  authorize  a  judgment.  It  omitted  to  find  whether  the 
property  had  been  taken  or  detained  by  the  defendant. ^  A 
verdict  of  non  detinet  only  establishes  the  question  of  deten- 
tion. It  does  not  find  the  right  of  property.  The  finding 
may  be  true,  and  yet  the  property  may  be  some  other  person's 
than  the  plaintiff. ^  So,  upon  the  issue  of  7ion  cepit,  a  finding 
for  the  defendant  only  determines  the  fact  that  the  defendant 
did  not  take  the  property  as  charged.  It  does  not  in  any  way 
settle  the  title.  Upon  this  issue  a  finding  by  the  jury  of  an 
actual  wrongful  taking  by  defendant  will  necessarily  entitle 
the  plaintiff'  to  a  judgment,  because  an  actual  wrongful  taking 
may  occur,  and  yet  the  taker  be  the  owner  of  the  property.* 

§  750.  The  same.  Where  the  title,  as  well  as  the  right  to 
the  possession,  is  in  issue,  and  the  verdict  is  only  as  to  the  right 
of  possession,  the  issue  as  to  title  is  not  determined,  and  a  new 
trial  should  be  granted.  The  title  may  be  in  one,  and  the 
right  of  possession  in  another,  and  these  questions,  when  sub- 
mitted, should  be  passed  upon.^  When  the  defendant  claimed 
only  a  lien  upon  the  goods,  and  the  verdict  was  silent  upon 
this  subject,  a  new  trial  was  granted.  ^ 

§  751.     Finding  need  not  be  in  express  words.    The  finding 

'  Jarrard  v.  Harper,  42  111.  457. 

2  HuflF  v.  Gilbert,  4  Blackf.  (Ind.)  19;  Smith  v.  Houston.  25  Ark.  184. 

3  Bemus  v.  Beekman,  3  Wend.  668;  Emmons  v.  Dowe,  2  Wis.  322. 

4  Hceron  v.  Beckwith,  1  Wis.  22;  Moulton  v.  Smith,  32  Me.  406. 

*  Appleton  V.  Barrett,  22  Wis.  568.  Pleas  were,  did  not  take  or  detain. 
Verdict,  '•  we  find  the  right  of  property  to  be  in  plaintiff,  and  assess  his 
damages  as  one  cent."  Heldy  insufficient  to  authorize  judgment  in  his 
favor.  It  was  not  responsive  to  the  issues.  Richardson  v.  Adkins,  6  Blackf. 
142. 

«  Warner  t.  Hunt,  30  Wis.  200. 


VERDICT   MAY    BE   GENERAL.  407 

need  not  be  in  express  words  when  the  intention  of  the  jury 
is  clear.  Thus,  where  the  plaintiff,  in  his  declaration,  sets  up 
several  distinct  causes  of  action,  and  general  issue  is  pleaded, 
and  tlie  jury  allow  him  certain  specified  causes,  and  say  nothing 
about  the  others,  the  verdict  may  be  sufficient  to  authorize  a 
judgment  for  him  to  the  extent  to  which  it  finds  for  him;  and 
such  verdict,  and  judgment  thereon,  will  be  a  bar  to  a  second 
action  on  the  causes  not  named  in  express  words. ^ 

§  752.  The  same.  Illustrations.  When  the  suit  was  for 
two  slaves,  "  Ben  "  and  "  Joe,"  the  verdict  was,  we  find  for  the 
plaintifi"  fur  "Ben,"  and  was  silent  about  "Joe,"  the  court 
said,  we  do  not  suppose  any  one  would  regard  this  as  a  verdict 
upon  part  of  the  issues.  The  silence  of  the  verdict  as  to  "  Joe  " 
is  equivalent  to  an  express  finding  as  to  him  for  the  defend- 
ant.2  Yerdict,  that  the  "  defendant  had  a  special  property  in 
the  goods  to  an  amount  of  an  execution,"  stating  it,  and  that 
the  "plaintiff  had  unjustly  taken  and  detained  it,"  and  assess- 
ing damages  is  sufficient,  though  it  ought  to  determine  the 
general  ownership. ^ 

§  753,  The  verdict  may  be  general  if  it  cover  all  the  issues. 
When  the  verdict,  by  its  terms,  necessarily  disposes  of  all  the 
material  issues  in  the  case,  an  express  finding  upon  all  the 
Eeparate  issues  may  not  be  essential.  When  the  defendant 
pleads  property  in  himself,  and  property  in  A.,  and  in  a  stranger, 
a  finding  of  property  in  the  defendant,  upon  the  first  plea,  is 
sufficient,  though  the  others  are  disregarded.*  The  jury  may 
sometimes  deliver  a  general  verdict,  embracing  all  the  issues 
submitted,  and  such  verdict  is  clear  and  explicit  upon  them  all. 
Thus,  when  the  pleas  are  non  cepit,  non  detinet,  property  in 
defendant,  and  property  in  third  person,  a  general  verdict, 

'  Buvkway  c.  Kinney,  2  John.  210;  Freas  v.  Lake,  2  Col.  480;  Irwin  v. 
Knox,  iO  John.  365;  Markham  v.  Middleton,  2  Strange,  1259;  Lewis  v. 
Lewis,  Minor,  {1st  Ala.)  95;  Ward  v.  Masterson,  10  Kan.  78. 

^  Wittick  V.  Traun,  27  Ala.  566.  To  same  effect,  see  Stoltz  v.  The  People, 
4  Scam.  (111.)  168;  Clark  v.  Keith,  9  Ohio,  73;  Hotchkiss  v.  Ashley,  44  Vt. 
198;  Brown  v.  Smith,  1  N.  H.  36. 

3  Single  V.  Barnard,  29  Wis.  463;  White  v.  Jones,  38  111.  161. 

*  Ramsey  v.  Waters,  1  Mo.  406 ;  Faulkner  v.  Meyers,  6  Neb.  415.  See 
Freas  v.  Lake,  2  Col.  480. 


408  VERDICT   AND   JUDGMENT. 

"  we,  the  jury,  find  the  issues  for  the  defendant,"  is  equivalent 
to  a  findino:  of  all  the  issues  for  the  defendant.  It  is  not 
simply  equivalent  to  a  verdict  of  not  guilty.  The  verdict  of 
not  guilty  would  be  responsive  only  to  the  pleas  of  non  oejnt 
and  non  detinet.^  Where  the  answer  was,  first,  general  denial; 
second,  property  in  defendant;  and  third,  property  in  a  stranger, 
the  verdict  was,  "  we  find  for  the  plaintiff,  that  he  is  entitled 
to  possession,  and  find  value  to  be  $125.  "  Held,  suflScient  to 
cover  all  the  issues.^  When  the  verdict  was  for  tlie  defendant, 
$28.75,  on  a  plea  of  property,  it  was,  in  effect,  a  verdict  for 
the  defendant  generally,  and  a  judgment  for  return,  with  costs, 
was  correct.3  A  contrary  conclusion,  however,  on  a  similar 
finding,  was  reached  in  Iowa.  It  was  for  the  defendant,  for 
$50,  and  was  said  to  be  a  verdict  that  the  plaintiff  was  enti- 
tled to  the  property  upon  paying  the  defendant  tliat  sum.'* 

§  754.  The  same.  Illustrations.  When  tlie  plaintiff  alleged 
that  he  was  the  absolute  owner,  and  entitled  to  the  immediate 
possession  of  the  property,  and  the  verdict  was,  "we,  the  jury, 
find  for  the  plaintiff,"  it  was  held  sufficient  to  warrant  judg- 
ment for  the  plaintiff.  The  verdict  was  to  the  effect  that  the 
plaintiff  was  the  absolute  owner,  and  entitled  to  the  imme- 
diate possession;^  but  a  general  verdict  cannot  be  sustained 
when  the  issues  are  conflicting,  and  when  all  cannot  be  truly 
found  for  one  party  or  the  other. ^  When  those  issues  are  sub- 
mitted, the  jury  should  find  whether  the  party  has  title  to  the 
property  on  the  right  of  possession  only."" 

'  Frea3  v.  Lake,  2  Col.  480;  Underwood  v.  White,  45  111.  438.  We  find 
for  the  plaintiff,  and  against  the  defendant,  was  sufficient.  Krause  v.  Cut- 
ting, 28  Wis.  655;  S.  C,  32  Wis.  688;  Rhodes  o.  Bunts,  21  Wend.  19;  Wheat 
V.  Catterlin,  23  Ind.  85. 

2  Clark  V.  Heck,  17  Ind.  (Harr.)  281. 

3  Huston  v.  Wilson,  3  Watts.  287. 

4  Hunt  v.  Bennett,  4  Greene,  (Iowa,)  513. 
*  Rowan  v.  Teague,  24  Ind.  304. 

«  Hewson  v.  Safflu,  7  Ohio,  Pt.  2,  284;  Johnson  t.  Howe,  2  Gilm.  346. 

'  Wolf  V.  Meyer,  12  Ohio  St.  432;  Verdict  that  the  plaintiff  is  the  owner, 
and  lawfully  entitled  to  possession  of  the  logs  described  in  the  complaint, 
and  that  their  value  is  $ — ,  and  the  plaintiff's  damages  are  $  — ,  is  a  gen- 
eral verdict  for  the  plaintiff,  and  is  equivalent  to  a  special  finding  that  the 
logs  were  detained  by  the  defendant.    Eldred  v.  The  Oconto  Co.,  33  Wis. 


VERDICT.  409 

§  755.  Verdict  should  not  merge  different  issues.  The  ver- 
dict should  not  amalgamate  different  issues,  unless  it  be  clear 
that  sucli  a  verdict  will  be  responsive  to  all  of  them,  and  that 
it  will  s'lve  the  court  clear  and  unmistakable  information  of 
what  the  jury  intended  to  find  upon  each.  Tlius,  the  jury 
Bhould  not  amalgamate  damas^es  for  the  talcino;  or  detention 
of  property  with  the  value  of  the  property  taken.  Each  should 
be  found  separately  ;i  otherwise,  the  court  cannot  tell  from  the 
verdict  what  judgment  to  render.^  Where  the  declaration 
contains  a  sufficient  cause  of  action  properly  stated,  with  othei 
matter  not  actionable,  and  damages  are  awarded,  it  will  be  pre- 
sumed that  the  damages  were  given  on  the  actionable  part 
only.  Thus,  the  declaration  was  for  one  table,  chest  and  other 
articles  specified,  and  for  one-third  of  four  stacks  of  fodder. 
The  verdict  was  for  the  plaintiff,  and  damages  assessed  at  $91. 
The  court  refussd  to  disturb  the  verdict,  presuming  that  the 
damages  were  assessed  on  the  articles  specified  and  not  on  the 
two-thirds  part  of  the  fodder. ^ 

§  756.  Separate  defendants  may  have  separate  verdicts. 
When  there  are  several  defendants,  it  is  error  to  assume  that 
all  of  them  are  guilty  of  the  acts  charged  in  the  declaration; 
the  jury  should  be  left  to  say  whether  all  were  engaged  in  the 
acts  complained  of  or  not,*  and  they  may  find  one  or  more  of 
the  defendants  guilty  and  acquit  others ;5  or  may  find  one 
guilty  as  to  a  portion  and  not  guilty  as  to  other  portions  ol  the 
property.^ 

§  757.  Verdict  m\ist  be  certain.  The  verdict  must  be  cer- 
tain. When  four  hogs  were  replevied,  and  the  jury  found  two 
of  them  to  be  the  property  of  the  plaintiff,  without  stating 

137.  To  same  effect,  see  Steph^ms  v.  Scott,  13  Ind.  515.  Compare  Swaiu  v. 
Roys,  4  Wis.  150. 

1  Nashville  Ins.  Co.  v.  Alexander,  10  Humph.  383;  Sayers  v.  Holmes,  3 
Cold.  (Tenn.)  259. 

^  Carson  v.  Applegarth,  6  Nev.  188. 

=*  Ellis  V.  Culver,  1  Har.  (Del.)  76. 

*  Dart  v.  Horn,  20  111.  213. 

*  Carothers  v.  Van  Hagan,  2  G.Greene,  (Iowa,)  481;  Hotchkiss  ».  Ashley, 
44  Vt.  199 ;  Wilderman  v.  Sandusky,  15  111.  60. 

«  Simpson  v.  Perry,  9  Geo.  508;  Walker  v.  Hunter,  5  Cranch.  C.  C.  463. 


410  VERDICT    AND   JUDGMENT. 

which  two,  the  verdict  was  regarded  as  uncertain  and  insuff 
cient.i  Verdict  describing  the  property  as  "said  property," 
if  the  goods  are  sufficiently  described  in  the  declaration,  is 
good. 2  When  the  jury  found  for  the  plaintifls  $5,619.37,  and 
in  the  verdict  stated  that  this  amount,  less  the  advances  and 
commissions,  was  due  the  plaintiff,  without  finding  what  those 
advances  and  commissions  were,  the  verdict  was  uncertain, 
and  no  judgment  could  be  rendered  on  it.*  When  the  issue 
was  non  detinet  and  title  to  the  property  in  the  defendant,  a 
verdict  for  defendant  when  the  jury  assessed  value  of  prop- 
erty and  nominal  damages,  did  not  warrant  a  general  judgment 
for  the  defendant,  though  it  was  doubtless  proper  for  the  court 
to  put  it  in  form."* 

§  758.  The  same.  Illustrations.  When  but  one  issue  is 
presented  in  the  pleadings,  a  general  verdict  for  plaintiff,  as- 
sessing damages  and  value  of  the  property  separately,  is 
sufficient. 6  So  a  verdict  that  the  property  belonged  to  the 
plaintiff",  and  that  he  should  recover  one  cent  damages  for 
detention  was  a  sufficient  finding  that  the  plaintiff  was  entitled 
to  possession.* 

§  759.  Must  be  consistent.  The  verdict  must  not  be  incon- 
sistent with  itself;  the  findings  upon  the  separate  issues 
presented  must  be  such  as  will  be  consistent  with  each  other, 
and  such  as  can  be  carried  into  effect  in  a  judgment.  There 
was  a  complaint  against  A.  and  B.  A.  pleaded  property  in  a 
stranger;  B.  pleaded  it  in  himself.  The  jury  found  a  verdict 
as  follows:  "We,  the  jury,  find  for  the  defendants."  The 
verdict,  being  general,  was  regarded  as  inconsistent  and  repug- 
nant; the  property,  according  to  the  letter  of  the  finding,  was 
in  a  stranger,  and  at  the  same  time  in  one  of  the  defendants;  this 

1  Machette  «.  Wanless,  1  Col.  225;  Campbell  o.  Jones,  38  Cal.  507;  Dowell 
V.  Richardson,  10  Ind.  573. 

*  Anderson  v.  Lane,  32  Ind.  102. 

»  Wood  V.  Orser,  11  Smith,  (25  N.  Y.)  348.  See,  also,  Donaldson  v.  John- 
son, 2  Chand.  (Wis.)  160. 

*  Donaldson  v.  Johnson,  2  Chand.  (Wis.)  160. 

«  Everit  v.  Walworth  Co.  Bank,  13  Wis.  419 ;  Fitzer  v.  McCannan,  14 
Wis.  63 ;  Wheat  v.  Catterlin,  23  Ind.  88. 

*  Stephens  v.  Scott,  13  Ind.  515;  Gotloff  v.  Henry,  14  111.  384. 


VALUE    OF    PROPERTT.  411 

was  impossible.  The  court  intimated,  liowever,  that  if  the 
parties  were  to  treat  it  as  a  general  finding  for  the  defendants 
upon  the  question  of  wrongful  taking  only,  it  might  be  suffi- 
cient upon  that  issue,  but  it  would  not  authorize  judgment  for 
a  return.  1  If  there  be  a  material  repugnancy  in  the  verdict, 
it  is  not  competent  for  the  court  to  decide  which  is  true  and 
which  is  false;  if  it  were  the  court  could  substitute  its  judg- 
ment for  that  of  the  jury;  in  such  cases  it  can  only  set  the 
verdict  aside. ^ 

§  760.  Value  of  property ;  when  must  be  found.  The  rules 
in  some  of  the  States  require  the  jury  to  find  the  value  of  the 
property;^  but  tlie  fact  that  they  did  not  so  find  should  be 
taken  advantage  of  at  the  first  opportunity.*  The  verdict 
must  find  both  the  value  and  the  damages  for  detention,  or  it 
is  doubtful  if  any  judgment  can  be  rendered  upon  it;^  even 
when  the  defendant  waives  a  return,  the  value  should  be 
found. 6  In  other  States,  and  by  the  common  law,  the  value 
is  immaterial. 

§  761.  Value  of  separate  articles.  In  many  of  the  States 
the  jury  are  required  to  find  the  value  of  each  separate  article, 
so  that  upon  a  return  of  part  of  the  entire  lot  the  defendant 
may  be  discharged  from  the  payment  of  the  value  of  that  part.' 
This  provision  is  intended  for  the  benefit  of  the  party  who  is 
adjudged  to  deliver  the  goods,  so  that  he  may  not  be  compelled 

>  Tardy  v.  Howard,  12  Ind.  404;  Hewson  v.  SafHn,  7  Ohio,  pt.  II.  234; 
Contra,  Edelen  v.  Thompson,  2  Har.  &  G.  (Md.)  31. 

«  Hewson  v.  Saffin,  7  Ham.  (Ohio,)  pt.  II.  232 ;  Barrett  v.  Hall,  1  Mas. 
447. 

3  Everit  v.  Walworth  Co.  Bank,  13  Wis.  419 ;  Fitzer  v.  McCannan,  14 
Wis.  63;  Wallace  v.  Hilliard,  7  Wis.  627;  Farmers'  L.  &  T.  Co.  v.  Com. 
Bank,  15  Wis.  424.  Even  though  not  denied.  Jenkins  v.  Steanka,  19  Wis. 
126 ;  Carson  v.  Applegarth,  6  Nev.  188 ;  Lambert  v.  McFarland,  2  Nev.  58 ; 
Pickett  '0.  Bridges,  10  Humph.  (Tenn.)  175;  Bates  «.  Buchanan,  2  Bush. 
(Ky.)  117;  Young  v.  Parsons,  2  Met.  (Ky.)  499. 

4  Watts  V.  Green,  30  Ind.  99. 

5  Wallace  v.  Hilliard,  7  Wis.  627. 

«  Farmers'  L.  &  T.  Co.  v.  Com.  Bank,  15  Wis.  424. 

'Whitfield  ij.  Whitfield,  40  Miss.  369;  Hoeser  v.  Kraeka,  29  Tex.  451; 
Eslava  v.  Dillihunt,  46  Ala.  698;  Drane  v.  Hilzheim,  13  S.  &  M.  (Miss.)  337; 
Caldwell  v.  Bruggerman,  4  Minn.  270;  Pickett  v.  Bridges,  10  Humph. 
(Tenn.)  175.    Contra,  Ward  v.  Masterson,  10  Kan.  78. 


412  VERDICT    AND   JUDGMENT. 

to  deliver  goods  and  at  the  same  time  pay  the  vahie;  and 
objection  to  a  verdict,  when  the  vahie  of  several  articles  is 
assessed  in  one  gross  sum,  must  be  taken  at  the  earliest  prac- 
ticable moment.  This  rule  is  in  force  in  many  States,  but  is 
not  universal. 

§  7G2.  Conditional  verdict.  A  verdict  that  is  conditional 
U])on  some  subsequent  act  of  the  party  is  not  warranted. i  So 
one  which  expresses  an  opinion  of  law  without  deciding 
questions  of  fact  cannot  be  sustained. ^ 

§  763.  Value  where  the  party's  interest  is  limited.  The 
amount  which  the  defendant  may  recover  is  not  necessarily 
the  full  value  of  the  property;  when  the  defendant  has  only  a 
limited  interest,  the  value  of  that,  and  not  the  full  value,  will 
be  awarded  him.  Thus,  with  an  execution  upon  property  less 
than  its  value,  there  would  only  be  a  claim  to  the  extent  of  the 
sum  for  which'  the  execution  issued,  and  in  teres  t.^  Where 
property  is  taken  from  an  officer  by  the  defendant  in  the 
execution,  verdict  for  the  officer  should  be  for  the  amount  of 
the  execution;  but  when  replevied  by  one  who  is  a  stranger  to 
the  process,  the  officer  maj^  be  liable  over  to  the  defendant  from 
whom  it  was  taken;  in  such  case  the  finding  for  the  officer 
should  be  the  full  value. 

§  76 Jr.  Verdict  for  damages;  when  essential.  In  McKean 
V.  Cutler^  48  N.  II.  372,  it  was  said  that  a  verdict  for  plaintiff 
upon  a  question  of  title  will  not  be  set  aside  because  the  jury 
did  not  find  damages;  the  judgment  for  damages  is  not  a 
necessary  ingredient  in  replevin.  This  case  is  entitled  to  the 
more  weight  because  it  considers  and  differs  from  Kendall  v. 
Flits,  2  Foster,  (JM.  II.)  9,  and  because  in  this  way  the  ques- 
tion was  directly  and  forcibly  presented,  as  to  whether  a 
judgment  for  damages  is  an  essential  one  in  replevin.     It  is 

'  Verdict  that  the  plaintiff  was  entitled  to  the  property  provided  a  chat- 
tel mortgage  was  not  paid  in  ten  days.     Rose  v.  Tolly,  15  Wis.  443. 

"^  Verdict  was:  "We  find  the  plaintiff  had  a  right  to  replevy  the  mill." 
Held,  to  amount  only  to  a  conclusion  of  law,  which  the  jury  had  no  au- 
thority to  decide;  judgment  could  not  be  rendered  upon  it.  Keller  ». 
Boatman,  49  Ind.  108. 

3  Booth  v.  Ableman,  20  Wis.  21 ;  S.  C,  20  Wis.  603;  Single  v.  Barnard,  29 
Wis.  4G3. 


VERDICT   SHOULD   EMBRACE    ALL    PARTIES   AND   ISSUES.       413 

probable,  however,  that  the  courts  will  not  extend  the  doctrine 
laid  down  in  McKean  v.  Cutler.  It  must  be  borne  in  mind 
that  damage  is  one  of  the  principal  questions  in  replevin; 
that  it  is  always  claimed  in  the  declaration.^  And  when  with 
this,  is  considered  the  fact  that  all  the  issues  presented  must  be 
passed  upon,  it  will  seem  the  better  course  to  insist  upon  a 
verdict  and  final  judgment  for  damages  (nominal  in  amount, 
if  no  more),  in  all  cases. 

§  765.  The  same.  When  damages  other  than  nominal  are 
awarded,  they  must,  in  all  cases,  be  assessed  by  a  jury,^  unless 
by  consent  of  parties  a  jury  is  waived. 

§  766.  The  judgment.  The  judgment  in  replevin,  when 
the  court  has  jurisdiction  ot  the  persons  and  subject  matter, 
is  conclusive  upon  all  parties.^  It  may  determine  the  prop- 
erty, the  special  property,  or  the  right  of  possession;  and 
when  so  determined  the  parties  cannot  set  up  or  claim  different 
rights  or  interests  as  against  the  judgment.*  The  parties  may 
have  separate  interests;  if  so  the  judgment  should  not  be 
joint.s  "When  the  court  has  no  jurisdiction,  it  cannot  render 
a  judgment  against  the  defendant,  even  for  costs. ^ 

§  767.  Should  embrace  all  parties  and  all  issues.  The  judg- 
ment should  be  for  or  against  all  parties;  final  judgment 
against  part  of  the  defendants  will  not  dispose  of  the  case  as 
to  others,  and  will  be  erroneous.  It  is  equally  important  that 
all  the  parties  should  be  disposed  of  as  that  all  the  issues 
should  be,'  The  judgment,  therefore,  should  determine  all 
the  issues,  i.  e.,  all  the  rights  of  all  the  parties  to  all  the  prop- 
erty. ^     It  may  be  good  as  to  some  defendants,  and  bad  as 

•  Buckley  o.  Buckley,  13  Nev.  423 ;  Faget  v.  Brayton,  2  H.  «&  J.  (Md.) 
350. 

•  Pearsons  v.  Eaton,  18  Mich.  80. 

»  Maids  V.  Watson,  13  Mo.  514;  Pomeroy  v.  Cocker,  4  Chand.  (Wis.)  174; 
Lutes  V.  Alpaugh,  23  N.  J.  L.  1G5 ;  Penrose  v.  Green,  1  Mo.  774. 

•*  Carlton  v.  Davis,  8  Allen,  94;  WiUer  v.  Fisher,  27  Iowa,  10;  Lowe  v. 
Lowry.  4  Ohio,  78 ;  Perry  v.  Lewis,  49  Miss.  443. 

^  Sweetzer  v.  Mead,  5  Mich.  107. 

•  Collamer  v.  Page,  35  Vt.  387. 
'  Barbour  d.  White,  37  111.  164. 

8  Dow  V.  Rattle,  12  111.  373;  Rose  v.  Tolly,  15  Wis.  444;  Perry  v.  Lewis,  49 
Miss.  443. 


414r  VERDICT    AND   JUDGMENT. 

to  Others;^  but  when  a  writ  of  replevin  against  two  defend- 
ants is  served  upon  one,  a  judgment  against  both  is  wliolly 
void. 2 

§  768.  The  same.  Where  the  court  without  a  jury  passes 
upon  the  issues  the  judgment  should  determine  all  the  issues 
submitted,  the  same  as  required  with  a  jury.  If  the  judg- 
ment is  for  the  plaintiff  the  court  should  find  the  value  of  the 
property,  where  that  is  necessary,  and  that  the  plaintiff  is  the 
owner  or  entitled  to  its  possession;  it  should  assess  damages 
and  order  a  delivery,  if  that  has  not  been  had  upon  the  writ. 
Each  of  these  steps  are  essential  to  a  valid  judgment.  ^ 

§  769.  Must  be  certain.  "Where  a  justice  entered  judgment 
as  follows:  *'  A  trial  was  had  and  a  judgment  rendered  against 
the  defendant  for  one  cow,"  it  was  held  not  sufficient.  It  did 
not  find  the  value  of  the  property,  or  that  the  plaintiff  was 
entitled  to  possession;  nor  did  it  assess  the  damages.  It  could 
not  be  read  in  evidence  in  another  case  for  the  same  cow.* 

§  770.  Judgment  upon  default.  When  the  plaintiff  failed 
to  appear  the  defendant,  at  common  law,  had  judgment  for  a 
return  and  damages. ^ 

§  771.  When  property  has  been  delivered  plaintiff  cannot 
have  value.  When  the  property  has  been  replevied  and  deliv- 
ered to  the  plaintiff,  of  course  he  cannot  have  judgment  for 
the  value.  He  must  take  judgment  for  tlie  property  in  his 
possession  and  such  damages  and  costs  as  he  can  obtain. ^ 

§  772.  Judgment  for  value  or  delivery.  Where  the  plain- 
tiff has  not  already  obtained  the  possession  of  the  property  by 
his  writ  or  order  for  delivery,  and  has  judgment  in  his  favor, 
the  form  of  the  judgment  is  for  the  delivery  of  the  goods,  or  for 

1  Mercer  v.  James,  6  Neb.  406. 

2  Ouly  V.  Dickinson,  5  Cold.  (Tenn.)  486. 

«  Beemis  v.  Wylie,  19  Wis.  319;  Bates  v.  Wilbur,  10  Wis.  416;  Heeron  v. 
Beckwith,  1  Wis.  17 ;  Beckwith  v.  Philleo,  15  Wis.  224. 

*  Beemis  v.  Wylie,  19  Wis.  319. 

»  Stat.  7  H.  YIII.  Ch.  4;  Wilk.  on  Rep.  72. 

«  Rockwell  V.  Saunders,  19  Barb.  473 ;  Seaman  v.  Luce,  23  Barb.  240 ; 
Merrill  v.  Butler,  18  Midi.  294;  BlackwelU.  Acton,  38  Ind.  426;  McNa- 
mara  v.  EisenleflF,  14  Abb.  Pr.  (n.  s.)  25;  Rowark  ».  Lee,  14  Ark.  426;  Gar- 
rett V.  Wood,  3  Kan.  231. 


JUDGMENT  IN   THE    ALTERNATIVE.  415 

the  value  in  case  a  delivery  cannot  be  liad.i  Tlie  judgment  in 
such  cases  is  usually  required  to  be  in  the  alternative.  In  Min- 
nesota there  can  be  no  judgment  for  value  if  the  property  can 
be  delivered.  A  judgment  for  value  not  in  the  alternative  is 
not  necessarily  erroneous  if  the  court  perceive  that  the  delivery 
is  impossible.2  It  does  not  follow  from  an  omission  of  the  court 
to  ascertain  the  value  and  render  the  judgment  therefor  that 
the  property  had  no  value,  or  that  such  value  cannot  be  ascer- 
tained in  suit  upon  the  bond.^  Therefore,  where  judgment 
for  value  or  in  the  alternative  is  not  imperative  under  the  stat- 
ute, the  judgment  may  be  for  a  return  of  the  goods;  in  such 
case  the  value  may  be  ascertained  and  recovered  in  suit  upon 
the  bond,  if  the  return  is  not  made.^ 

§  773.  Judgment  in  the  alternative  for  the  goods  or  for  their 
value.  "When  the  judgment  is  for  the  defendant,  and  he  is 
entitled  to  a  return,  the  judgment  should  be  in  the  alternative, 
i.  e.,  for  the  delivery  of  the  property,  or  in  case  that  cannot  be 
had  then  the  value  of  the  property  as  found  by  the  jury; 5 
upon  such  judgment  he  is  entitled  to  all  the  processes  of  the 
court  which  are  issuable  upon  other  judgments. 

§  774.  Exceptions  to  this  rule.  There  are  cases  which  hold 
that  the  defendant  may  waive  the  return  and  take  judgment 
for  the  value  alone  if  lie  so  elect. ^  This  rule,  however,  varies 
in  different  States;  the  statute  controls,  and  upon  this  subject 

'  Ward  V.  Masterson,  10  Kan.  77;  Marix  v.  Franke,  9  Kan.  133;  Clary  v. 
Roland,  24  Cal.  149,  and  cases  last  cited.  See,  also,  Fitzhugh  v.  Wiman,  9 
N.  Y.  559;  Glann  v.  Younglove,  27  Barb.  4S0;  Gallarati  ».  Orser,  4  Bosw. 
(N.  Y.)  94;  Smith  v.  Coolbaugh,  19  Wis.  107. 

«  Boley  V.  Griswold.  20  Wall.  486.     Cases  last  cited. 

3  KafertJ.  Harlow,  5  Allen,  348;  Hawley  v.  Warner,  13  Iowa,  43;  Mason 
V.  Richards,  13  Iowa,  73;  Nickerson  v.  Chatterton,  7  Cal.  568;  Clary  v.  Rol- 
land,  24  Cal.  147. 

*  Hall  V.  Smith,  10  Iowa,  45. 

5  Mason  v.  Richards,  13  Iowa,  73;  Eslava  v.  Dillihunt,  46  Ala.  703;  Smith 
V.  Coolbaugh,  19  Wis.  107;  Jansen  v.  Effey,  10  Iowa,  227;  Marix  v.  Frauke, 
9  Kan.  132;  Chissom  v.  Lamcool,  9  Ind.  531;  Bales  v.  Scott,  36  Ind.  203; 
Easton  v.  Worthington.  5  S.  &  R.  133;  Dwight  v.  Enos,  9  N.  Y.  (5  Seld.) 
470;  Hall  v.  Jenness,  6  Kan.  365;  Copeland  v.  Majors,  9  Kan.  104;  Nick- 
erson  v.  Chatterton,  7  Cal.  568;  Pratt  v.  Donovan,  10  Wis.  379. 

•  See  Smith  v.  Coolbaugh,  19  Wis.  107;  People  v.  Tripp,  15  Mich.  518; 
Williams  v.  Vail,  9  Mich.  162. 


416  VERDICT   AND    JUDGMENT. 

it  is  the  only  guide.  In  Illinois  the  judgment  is  for  the  return 
and  not  in  tlie  alternative,  except  where  tlie  property  was  held 
as  security  for  the  payment  of  money;  in  such  case  the  judg- 
ment may  be  in  the  alternative  for  the  payment  of  the  amount 
for  which  it  was  rightfully  held,  with  damages  within  a  given 
time  to  be  fixed  by  the  court,  or  make  return  of  the  pro])erty.i 
In  California  a  judgment  which  left  the  defendant  at  liberty 
to  pay  the  amount  or  deliver  the  property,  as  he  might  elect, 
was  held  erroneous;  it  must  be  for  the  delivery  of  the  prop- 
erty, if  delivery  can  be  had,  or  for  the  value  in  case  it  cannot.^ 
In  Wisconsin  the  defendant  may  waive  a  return  and  take  judg- 
ment for  the  value  of  the  property.^  The  same  rule  prevails 
in  Micliigan'*  and  in  Arkansas,  where  an  acceptance  of  a  ver- 
dict for  the  value  will  be  sufficient  without  a  formal  waive  of 
a  return  on  record. ^  In  New  York  the  defendant  cannot  elect 
to  take  judgment  for  the  value,  but  it  must  be  in  the  alterna- 
tive.^ In  Mississippi  the  value  of  each  separate  article  must 
be  found;  judgment  should  be  for  the  delivery  of  each,  or  the 
payment  of  its  value;  upon  the  delivery  of  any  one  or  more 
of  the  articles  the  defendant  stands  discharged  from  the  pay- 
ment of  its  value.'  This  is  also  the  rule  in  Texas.^  The 
code  of  Alabama  requires  the  jury  to  assess  the  value  of  each 
separate  article  where  it  is  practicable.  When  the  articles 
were  a  large  number  of  house  goods  of  small  value,  and 
neither  the  plaintifi:  nor  defendant  objected  to  the  verdict 
when  returned,  an  assessment  of  the  value  in  gross  was  held 
sufficient.^     In  Tennessee,  with  reference  to  such  articles  as 

>  Rev.  Stat.  Ill  Ch.  119,  §  22;  Lamping  v.  Payne,  83  lU.  463. 
«  Cummings  v.  Stewart,  43  Cal.  233. 

8  Pratt  V.  Donovan,  10  Wis.  378;  Morrison  v.  Austin,  14  Wis.  603;  Farm- 
ers' L.  &  T.  Co.  V.  Com.  Bank  of  Racine,  15  Wis.  425. 

♦  Adams  t).  Champion,  31  Mich.  235;  Wheeler  «.  Wilkias,  19  Mich.  78; 
People  V.  Tripp,  15  Mich.  518. 

«  Hill  V.  Fellows,  25  Ark.  13. 

«  Seaman  v.  Luce,  23  Barb.  240;  Fitzhugh  v.  Wiman,  5  Seld.  (N.  Y.)  559, 

1  Whitfield  v.  Whitfield,  40  Miss.  369.    See,  also,  Caldwell  v.  Bruggerman. 

4  Minn.  270;  Hoeserv.  Kraeka,  29  Texas,  451 ;  Pickett  v.  Bridges,  10  Humph. 

(Tenn.)  175. 

*  Hoeser  v.  Kraeka.  29  Texas,  451. 
»  Eslava  v.  Dillihunt,  46  Ala,  702. 


SEPARATE   JUDGMENTS.  417 

are  in  their  nature  distinct,  tlie  jury  must  find  the  value  of 
each  feparatelj.i  So  in  Mississippi,  tlie  jury  must  assess  the 
vahie  of  each  separate  article;  bat  what  in  common  under- 
standing is  considered  as  parts  of  one  whole  may  be  so  in  law. 
In  replevin  for  a  barouche  and  harness  and  two  horses,  the 
barouche  and  harness  may  be  regarded  as  parts  of  one  whole, 
and  but  one  value  placed  upon  them;  but  the  horses  should 
be  valued  separately. ^  Where  the  defendant  gives  bond  under 
the  statute  and  retains  the  property'  the  judgment  for  the 
plaintiff  should  be  in  the  alternative  for  the  property  or  its 
value.  3 

§  775.  Judgment  for  each  party  for  difierent  parts  of  tho 
goods.  It  sometimes  happens  that  the  plaintiff  recovers  a 
verdict  for  a  portion  only  of  the  property,  Avhile  the  defendant 
has  a  verdict  for  the  remainder.  In  such  cases,  each  is  entitled 
to  judgment  for  the  portion  so  found  for  him,  together  with 
damages  and  costs  in  so  far  as  he  is  successful.  When  the 
action  was  for  merchandise,  and  the  jury  found  the  defendant 
"guilty"  as  to  all  the  property  mentioned,  except  two  pieces 
of  satin,  and  that  the  plaintiff  recover  all  the  goods  except 
those,  and  that  he  also  recover  one  cent  damages,  and  that  the 
defendant  recover  the  satin  and  four  dollars  and  twenty  cents 
damages,  it  was  held  that  the  judgment  must  follow  the  ver- 
dict, and  that  the  costs  must  be  apportioned  equitably.  In 
such  case  the  court,  under  its  general  powers,  could  set  off  the 
damages  and  costs  and  award  execution  for  the  balance,  when 
no  reason  for  a  contrary  course  appeai-ed  to  exist.* 

§  776.  Separate  judgments  as  to  separate  defendants. 
AVhere  there  are  several  defendants,  a  verdict  as  to  one  need 
not  embrace  the  others.  One  may  be  guilty  of  the  taking  or 
of  detention  and  the  others  not.     The  rules  which  apply  in 

'  Pickett^.  Bridges,  10  Humph.  (Tenn.)  171;  Rowland  v.  Mann,  6  Ired. 
(N.  C;  38;  Sayers  v.  Holmes,  2  Cold.  (Tena.)  339. 

2  Drane  v.  Hilzheim,  13  S.  &  M.  (Miss.)  337. 

3  Anderson  v.  Tyson,  6  S.  &  M.  (Miss.)  244. 

*  Poor  V.  Woodburn,  25  Vt.  239.     See,  also,  Brown  v.  Smith,  1  K  H.  36; 
Powell  V.   Hinsdale,  5  Mass.  343;  Clark  v.  Keith,  9  Ohio,  73;  O'Keefe  v. 
Kello.^g,   15   111.  353;    McLarreu  v.  Thompson,  40  Me.   285;    Wright   v. 
Mathews,  2  Blackf.  (Ind.)  187. 
^7 


418  VERDICT    AND   JUDGMENT. 

cases  of  trespass  govern  the  judgment  in  replevin.  The  con- 
stant practice  is  to  render  judgment  against  one  who  may  be 
found  guilty  and  at  the  same  time  discharge  those  not  guilty. ^ 
So,  when  the  action  is  against  joint  defendants,  the  court  may 
adjudge  a  return  of  the  goods  to  one  of  several,  while  as  to 
the  others  no  return  is  allowed. ^  Where  there  is  more  than 
one  defendant,  when  judgment  is  against  all,  it  must  be  a 
joint  judgment  for  joint  damages;  each  of  the  defendants  is 
jointly  liable  for  all  the  damages  which  the  plaintiff  has  sus- 
tained without  regard  to  the  fact  that  one  may  have  been 
more  or  less  guilty  than  the  others. ^  But  the  plaintiff  may, 
before  verdict,  enter  nolle  prosequi  as  to  one  and  take  judg- 
ment as  to  the  others,  and  when  the  jury  erroneously  assess 
several  damages,  the  plaintiff  may  enter  a  nolle  as  to  all  but 
one  and  take  judgment  against  him.* 

§  777.  Order  for  delivery  part  of  the  judgment.  The  order 
of  delivery  is  part  of  the  judgment.^  It  must  be  made  at  the 
same  time,  or  at  least  while  the  court  has  its  record  before  it; 
it  cannot  be  made  at  a  subsequent  term,  even  upon  notice  to 
the  other  party.  The  court  has  no  power  to  correct  its  records 
at  a  subsequent  term.^ 

§  778.  Defendant  entitled  to  reasonable  time  to  comply 
with  the  judgment  for  return.  "When  the  judgment  is  for  a 
return  or  payment  of  the  value,  the  defendant  is  entitled  to  a 
reasonable  time  within  which  to  make  the  return,  and  so 
excuse  himself  from  the  payment  of  the  value.     Thus,  where 

'  Carothers  v.  Van  Hagan,  2  G.  Greene,  (Iowa,)  481;  Church  v.  DeWolf, 
2  Root,  (Conn.)  282;  Wakeman  v.  Lindsay,  19  L.  J.  Q.  B.  166;  Addisoa  v. 
Ovcrend,  6  Term  R.  357  and  767 ;  Ouly  v.  Dickinson,  5  Cold.  (Tenn.)  486. 

2  Woodburn  v.  Chamberlin,  17  Barb.  452. 

3  Clark  V.  Bales,  15  Ark.  452;  Layman  v.  Hcndrix,  1  Ala.  212;  Simpson 
■c.  Perry,  9  Geo.  508;  Fuller  v.  Cliamberlain,  11  Met.  503. 

•i  Crawford  v.  Morris,  5  Gratt.  90;  Wallace  v.  Brown,  5  Fost.  216;  Holley 
V.  Mix,  3  Wend.  350;  Cahoon  v.  Bank  of  Utica,  3  Seld.  (N.  Y.)  490; 
Pearce  v.  Twichell,  41  Miss.  346. 

6  Weizen  v.  McKinney,  2  Wis.  288;  Nickerson  v.  Chatterton,  7  Cal.  572; 
Kates  V.  Thomas,  14  Minn.  461 ;  Dwigiit  v.  En<is,  5  Seld.  (N.  Y.)  470;  Wil- 
kins  V.  Treynor,  14  Iowa,  393:  Clark  v.  Warner,  32  Iowa,  219;  Funk  v. 
Israel,  5  Iowa,  454;  Fitzliugh  v.  Wiman,  9  N.  Y.  559. 

«  Lill  V.  Stookey,  72  III.  495. 


JUDGMENT.  419 

the  judgment  was  for  a  return  of  the  mare  and  colt  in  dis- 
pute, or  in  lieu  thereof  one  hundred  and  sixty  dollars,  a  few 
days  thereafter  the  plaintiff  tendered  the  mare  and  colt  to  the 
defendant,  who  refused  to  receive  them  and  demanded  the 
money  value  as  assessed  by  the  jury,  a  tender  within  thirty 
days  was  held  to  be  within  a  reasonable  time.' 

§  779.  Effect  of  payment  of  judgment  for  value.  Where 
the  judgment  is  against  the  defendant  for  value,  and  that 
value  is  paid,  the  effect  of  the  judgment  and  payment  is  to 
transfer  the  title  to  the  party  against  whom  the  judgment  is 
rendered. 3  So  in  trover  judgment  for  plaintiff  changes  the 
ownership,  so  that  as  against  the  defendant  this  plaintiff  can- 
not again  claim  title.^  But  in  replevin  the  right  to  possession 
may  be  the  only  issue  to  be  tried,  and  in  such  case  the  judg- 
ment is  no  evidence  of  title.  "When  the  title  is  in  issue  and 
determined,  the  judgment  will,  ot  course,  be  conclusive  upon 
the  parties  until  reversed  in  a  legal  manner,*  and  this  rule 
applies  as  well  where  the  property  is  not  delivered  upon  the 
writ  as  where  it  is.^ 

§  780.  The  same.  When  plaintiff'  sued  for  rails,  and  the 
defendant  had  used  part  of  them  in  building  a  fence  before 
the  service  of  the  writ,  judgment  for  damages  in  replevin  was 
a  bar  to  subsequent  suit  in  trover  for  the  value.^  The  record 
of  an  ineffectual  suit  in  replevin  for  money  is  not  a  bar  to 
another  action  for  the  same  money.'' 

§  781.  Judgment  of  non-suit  does  not  affect  title.  Judg- 
ment of  non-suit  or  discontinuance  does  not  bar  the  plaintiff 
from  another  action  for  the  same  cause. ^     This  was  the  com- 

'  McClellan  v.  Marshall,  19  Iowa,  562. 
'  Marix  v.  Franke,  9  Kan.  133. 

3  Adams  v.  Broughton,  Andrews,  18.     See  Hoag  v.  Breman,  3  Mich.  1G2. 

4  Seldner  v.  Smith,  40  Md.  603 ;  Wallace  v.  Clark,  7  Blackf.  299 ;  Warner 
V.  Matthews,  18  111.  83.    See  Judgment  for  Return,  ante,  Ch.  XVI. 

^  Parmalee  v.  Loomis,  24  Mich.  242. 

«  Bower  v.  Tallman,  5  W.  &  S.  (Pa.)  556.  See,  also,  Osterhout  v.  Roberts, 
8  Cow.  (N.  Y.)  43 ;  Livingston  v.  Bishop,  1  Johns.  290 ;  Sharp  v.  Gray,  5 
B.  Mon.  (Ky.)  4;  Jones  v.  McNeil,  2  Bailey,  (S.  C.)  466. 

■<  Sager  v.  Blain,  5  Hand,  (44  N.  Y.)  448. 

«  Hackett  v.  Bonnell,  16  Wis.  471 ;  Daggett  v.  Robins,  2  Blackf.  415 ; 
Westcott  V.  Bock,  3  Col.  335. 


420  VERDICT    AND   JUDGMENT. 

mon  law.  The  statute  in  England,  Stat.  Westm.  2cl,  13  E.  1 
C.  2,  which  restrains  the  plaintiff  from  a  second  replevin,  but 
permits  him  to  proceed  by  a  writ  of  second  deliverance,  is 
applicable  only  to  actions  founded  upon  a  distress,  and  is  local 
to  that  kingdom.! 

§  782.  Judgment  of  dismissal.  When  the  suit  is  dismissed 
for  informality  the  plaintiff  may  maintain  another  action  upon 
the  original  unlawful  taking.  Such  judgment  for  return  con- 
stitutes no  bar  to  this  action  because  the  case  was  not  heard 
upon  its  merits.  !N^or  is  it  a  valid  objection  that  the  defendant 
has  not  in  fact  taken  out  any  writ  of  return  or  actually  taken 
the  property  into  his  possession.  The  judgment  for  a  return 
was  ordered  upon  the  defendant's  motion  to  dismiss  the  writ; 
the  plaintiff  yielded  to  it  and  returned  the  property  to  the  place 
from  which  he  had  taken  it  under  his  defective  proceeding; 
this  left  the  plaintiff's  case  where  it  was  when  he  instituted 
his  first  action.2 

§  783.  Illustrations  of  the  effect  of  judgment.  When  the 
plaintiff  in  replevin  who  had  obtained  delivery  of  the  goods 
upon  his  writ  sold  them  and  afterwards  died  and  the  suit  was 
abated,  the  defendant  in  the  suit  brought  replevin  from  the 
purchaser  and  was  permitted  to  set  up  his  prior  title  to  sus- 
tain his  action  against  the  purchaser;  the  record  of  the  first 
suit,  which  was  abated,  constituting  no  bar.^  So  judgment  by 
default  does  not  always  settle  the  rights  to  the  property;  there 
should  be  a  finding  by  the  court.*  But  parties  sued  in  tres- 
pass cannot  set  up  the  fact  that  they  sold  the  property  to  one 
from  whom  the  owner  has  recovered  it  in  replevin.  The 
recovery  in  replevin  from  a  purchaser  from  a  trespasser  is  no 
defense  for  the  trespasser.^ 

§  784.  Judgment  for  value  of  limited  interest.  When  the 
interest  of  the  defendant  is  less  than  the  value  of  the  property 
a  judgment  in  his  favor  should  not  be  for  full  amount,  but 

"  Dasrgett  V.  Robius,  2  Blackf.  418. 

2  Walbridge  v.  Shaw,  7  Cush.5G0;  Wilbur  v.  Gilmore,  21  Pick.  250;  Mor- 
ton  V.  Sweetser,  13  Allen  (Mass.)  134. 

3  Lockwood  V.  Perry,  9  ]\Iet.  446. 

*  Studdert  v.  Hassell,  6  Humph.  (Tenn.)  137. 
s  McGee  v.  Overly,  7  Eng.  (Ark.)  164. 


JUDGMENT   FOR    VALUE.  421 

onlj  for  the  value  of  his  interest,  unless  he  is  in  some  way 
liable  to  the  general  owner.  When  the  suit  is  for  mortgaged 
property,  defendant  succeeding  is  entitled  to  a  return;  but  in 
such  cases  he  only  takes  the  lien  of  his  mortgage;  if  he  ask 
for  judgment  for  the  full  amount  he  must  take  the  value  of 
his  interest.  1 

§  785.  Judgment  for  value  on  count  in  trover.  In  Illinois, 
where  the  officer's  return  shows  that  the  property  or  any  part 
of  it  was  not  delivered,  the  plaintiff  may  add  a  count  in  trover, 
and  upon  proper  proof  take  judgment  for  the  value  of  the 
property  not  delivered.^  The  rule  in  Tennessee  and  Florida 
is  similar  to  that  of  Illinois  in  this  respect,  and  was  so  in  Col- 
orado until  changed  by  statute. 

§  786.  When  property  is  lost  judgment  for  return  imma- 
terial. Where  it  appears  upon  trial  that  the  property  is  hope- 
lessly lost  or  destroyed  so  that  a  judgment  for  a  return  would 
be  of  no  avail,  a  failure  to  render  a  judgment  for  its  return 
would  be  at  most  a  technical  error,  lor  which  judgment  for  the 
value  would  not  be  reversed.  ^ 

§  787.  Judgment  for  value  in  sueh  cases.  The  death  or 
destruction  of  the  property  does  not  necessarily  do  away  with 
the  necessity  of  judgment  for  the  value.  By  the  ancient  law 
the  property  was  presumed  to  belong  to  the  plaintiff,  and  the 
only  interest  which  the  defendant  claimed  in  it  was  the  right 
to  hold  it  as  security  or  a  pledge  for  the  rent  claimed  to  be 
due.  Property  so  seized  or  impounded  was,  even  while  in 
pound,  at  the  owner's  risk  if  it  died.*  If  replevied  by  the 
owner  the  landlord  lost  his  lien  and  was  required  to  look  to 
the  security  upon  the  bond;  if  the  animal  died  pending  the 
replevin  suit  the  rights  of  the  landlord  were  not  affected. 
But  under  the  present  practice  the  controversy  is  more  fre- 
quently concerning  the  title  or  right  of  possession  than  of 
distraint.  The  common  law,  therefore,  furnishes  no  rules  to 
determine  what  the  judgment  should  be  in  sueh  cases.     In 

'  Fowler  v.  Hoffman,  31  Mich.  221;  Russell  v.  Butterfield,  21  Wend.  300. 

2  Kehoe  v.  Rounds,  69  111.  352;  Dart  v.  Horn.  20  111.  213. 

3  Brown  v.  Johnson,  45  Cal  77;  Boley  v.  Griswold,  20  Wall.  486. 
*  See  ante,  §  8;  Gilbert  on  Hep.;  3  Bla.  Com.  145. 


422  VERDICT   AND   JUDGMENT. 

New  York  it  was  held  that  when  the  property  was  an  animal 
that  died  before  a  return,  plea  showing  that  fact,  and  that  it 
died  without  the  fault  of  the  defendant,  was  good.i  But 
where  the  property  is  wrongfully  taken  out  of  the  owner's  pos- 
session upon  a  writ  of  replevin  the  taker  cannot,  upon  judg- 
ment against  him,  excuse  his  liability  for  the  payment  of  the 
value  by  showing  its  death  or  destruction.  Property  so  taken 
is  not  at  the  risk  of  the  rightful  owner  while  in  possession  of 
the  wrongful  taker.  This  question,  however,  more  properly 
arises  in  another  place,  ^ 

'  Carpenter  v.  Stevens,  12  Wend.  589. 
»  See  Damages,  §  600,  et  seq. 


CONTESTING    CEEDITOKS. 


423 


CHAPTER  XXY. 


MISCELLANEOUS. 


Section. 

Contesting  creditors  cannot  in- 
voke the  aid  of  tlie  insolvent 
law  against  each  other  .        .  788 

Nor  set  up  forfeiture  under 
usury  laws      ....  789 

Right  to  begin  and  conclude    .  790 

Trial  upon  the  facts  existing 
when  the  suit  began       .        .  791 

Date  of  writ  not  conclusive  as 
to  commencement  of  suit      .  793 

All  matters  in  dispute  should 
be  settled  in  the  replevin  suit  793 


Section. 
Defense  by  bailee       .        .        .  794 
Effect  of  a  submission  to  arbi- 
tration       795 

Plea  in  abatement,  another  suit 

pending 796 

The  same,  to  the  affidavit  .  .797 
Limitations  .  .  ,  .  798 
Amendments  ....  799 
Amendment  of  affidavit  .  .  800 
Death  of  party  to  the  suit .        .  801 


§  788.  Contesting  creditors  cannot  invoke  the  aid  of  the  in- 
solvent laws  against  each  other.  In  replevin  bj  an  attachino^ 
creditor,  from  one  who  claims  under  purchase  from  the  debtor, 
the  attaching  creditor  cannot  invoke  the  aid  of  the  insolvent 
laws  of  the  State  to  set  aside  a  sale  or  transfer  to  the  other. ^ 
The  insolvent  laws  are  only  for  the  benefit  of  those  who  claim 
under  them.  The  assignee  may  have  recourse  to  such  law  in 
some  cases  to  defeat  a  sale  to  a  creditor,  but  the  rights  of  con- 
testing creditors,  who  do  not  claim  under  the  assignee,  are  not 
affected  by  the  insolvent  laws. 

§  789.  Nor  set  up  a  forfeiture  under  usury  laws.  In  a  suit 
where  the  plaintiff  claimed  from  an  assignee  in  insolvency, 
and  the  defendant  claimed  under  a  mortgage  made  by  tlie  in- 
solvent, the  mortgage  debt  was  not  paid,  but  the  plaintiff 
offered  to  show  that  it  was  for  usury;  that  if  statutory  penalty 
of  threefold  the  usurious  interest  was  deducted  from  it,  the 


'  Gardner  v.  Lane,  9  Allen,  (Mass.)  497. 


424  MISCELLANEOUS. 

debt  would  be  canceled.  He  therefore  claimed  the  right  to 
regard  the  mortgage  as  paid.  Held.,  that  the  forfeiture  for 
usury  must  be  judicially  determined  upon  an  issue  on  that 
question  before  it  could  be  applied  to  reduce  the  debt  so  as  to 
affect  the  lender's  title  to  his  security,  and  judgment  was  for 
the  defendant,!  The  rio^ht  to  deduct  the  forfeiture  in  a  suit  to 
enforce  the  contract  is  by  no  means  payment  of  the  debt.^ 

§790.  Right  to  begin  and  conclude.  While  the  defendant 
is  an  actor,  and  so  far  a  plaintiff,  it  does  not  follow  that  he  has 
the  right  to  begin  and  conclude.  In  determining  which  party 
has  the  right,  the  court  should  consider,  not  so  much  the  form 
ot  the  issue  as  the  substance  and  effect  of  it.  The  question  is, 
on  whom  is  the  burden  of  proving  the  issue?  The  obligation 
rests  upon  him  to  make  it  out  by  a  preponderence  of  proof; 
he  therefore  has  the  right  to  begin  andconclude.^  "Where  the 
defendant  pleads  property  in  himself,  with  a  traverse  of  the 
plaintifi^'s  rights,  there  is  still  such  a  burden  of  proof  upon 
the  plaintiff  as  to  entitle  him  to  begin  and  conclude.^  But 
when  the  defendant  pleads  property  without  traverse,  he  as- 
sumes the  burden  of  proving  the  property  to  be  his.  If  no 
proof  be  offered,  the  judgment  upon  such  plea  would  be  for 
the  plaintiff.  In  such  case  the  defendant  may  begin.  Sucli 
plea  is  regarded  as  admitting  the  plaintiff's  claim,  and  asserting 
a  superior  right  in  the  defendant. 

§  791.  Trial  upon  the  facts  existing  when  the  suit  began. 
According  to  the  general  rule,  the  suit  is  tried  on  the  state  ot 
fact  as  they  existed  at  the  commencement  of  the  suit.^  This 
rule  must  prevail,  unless  there  be  some  peculiar  reasons  exist- 
ino-  to  the  contrary.^  Where  the  defendant  justified  as  an  offi- 
cer, under  an  attachment,  evidence  to  show  that  it  was  dissolved 

1  McNcal  V.  Leonard,  1  Allen,  399.     See  same  case,  3  Allen,  268. 

Mb. 

3  Bills  -y.  Vose,  7  Foster,  (N.  H.)  215;  Belknap  v.  Wendell,  1  Foster,  (21 
K  H.)  181. 

■»  Marsh  v.  Pier,  4  Rawle,  (Pa.)  273. 

^  Currier  v.  Ford,  26  111.  492;  Bclden  v.  Laing,  8  Mich.  500;  Cassell  v. 
Western,  etc.,  Co.,  12  Iowa,  47;  HickeytJ.  Hinsdale,  12  Mich.  99;  Loouais  v. 
Youlc,  1  Minn.  175;  Clark  v.  AVest,  23  Mich.  242. 

6  Caiy  V.  Hewitt,  26  Mich.  228. 


MATTERS    IN   DISPUTE.  425 

after  tLe  property  was  replevied  was  immaterial,  as  the  rights 
of  the  parties  depend  upon  the  fticts  existing  at  the  time  the 
suit  was  begun. ^  So  in  suit  on  bond,  when  the  issue  in  re- 
plevin was  title  to  the  property,  and  that  was  found  for  the 
defendant,  he  was  not  allowed,  in  the  suit  upon  the  bond,  to 
set  up  a  subsequently  acquired  title  as  a  defense.^  But  this 
rule  will  not  prevent  the  consideration  of  damages  to  the  time 
of  the  judgment,  as  interest  is  computed  on  a  note;  neither 
will  the  court  refuse  to  consider  the  rights  of  the  defendant  to 
a  return  at  the  time  return  is  asked. 

§  792.  Date  of  writ  not  conclusive  as  to  commencement  of 
suit.  The  date  of  the  writ  is  not  necessarily  conclusive  as  to 
the  time  the  suit  was  begun.  If  the  action  had  not  accrued 
on  the  day  of  the  date  of  the  writ,  but  did  accrue  before  the 
date  of  the  service,  and  there  is  no  evidence  of  the  date  when 
the  writ  was  issued  or  used,  in  any  way,  the  presumption  would 
be  that  the  action  was  brought  after  it  had  accrued. ^ 

§  793.  All  matters  in  dispute  should  be  settled  in  the  replevin 
suit.  The  legal  interests  of  the  parties  should,  as  far  as  pos- 
sible, be  determined  in  the  replevin  suit;  that  should  be 
final.  By  this  is  meant  all  the  legal  rights  of  the  parties  at 
at  issue,  or  which  may  properly  be  determined  in  the  suit 
should  be  finally  settled.  But  where  the  plaintiff  dismisses 
the  suit,  and  the  court  awards  a  return,  the  security  may  plead 
limited  interest  or  want  of  title,  in  reply  to  the  suit  upon  the 
bond.*  "Where  the  plaintiff  claims  property,  and  the  defendant 
claims  a  lien,  as  pound  master,  the  jury  should  find  whether  the 
plaintiff  was  the  owner,  and  whether  the  property  was  subject 
to  this  lien.' 

§794.  Defense  by  bailee.  A  bailee  of  goods,  when  sued, 
may  show  that  his  bailor  did  not  own  them.  He  is  not  bound 
to  retain  possession  at  all  hazards,  and  is  under  no  obligation 
to  resist  an  apparently  good  claim  made  by  another  person,  at 

'  McCraw  v.  Welch.  2  Col.  287. 
'■<  CaiTv.  Ellis,  37  Ind.  4G7. 

3  Federhen  v.  Smith,  3  Allen,  119.    See,  also,  Swift  v.  Crocker,  21  Pick. 
241 ;  Seaver  v.  Lincoln.  21  Pick.  267. 
■*  Hayden  v.  Anderson,  17  Iowa,  158. 
»  Warner  v.  Kimt,  30  Wis.  202. 


426  MISCELLANEOUS. 

tlie  expense  of  a  lawsuit, ^  thougli  fair  dealing  in  this  respect 
would  require  him  to  notify  the  bailor,  if  practicable,  so  that 
he  might  resist,  if  he  saw  lit.  The  rule  in  ejectment  requires 
the  tenant  to  notify  the  landlord  of  any  suit  to  dispossess  him. 
The  same  reasons  would  apply  where  the  bailee  was  sued  for  a 
chattel  by  a  stranger.  The  bailor  might  determine  for  himself 
whether  to  yield  to  the  claimant,  or  contest  his  riglit;  or  he 
might  notify  his  bailee,  which  would  be  the  preferable  course. 

§  795.  Effect  of  a  submission  to  arbitration.  An  uncondi- 
tional submission  of  the  suit  in  replevin  to  the  award  of 
arbitration,  is  a  discontinuance  of  it.  The  parties  have  agreed 
to  resort  to  another  and  different  forum.  In  such  case  the 
liability  of  the  security  is  at  an  end.  The  bond  was  conditioned 
to  secure  the  due  prosecution  of  the  suit;  the  prosecution  was 
dispensed  with  by  agreement  of  the  defendant  for  whose 
benefit  the  bond  was  made.^  But  if  the  submission  contains 
the  agreement  that  a  judgment  of  court  shall  be  entered  upon 
the  award,  such  an  entry  will  be  equivalent  to  a  judgment 
after  trial.  ^ 

§  796.  Plea  in  abatement,  another  suit  pending.  Plea  in 
abatement,  setting  up  a  prior  replevin,  which  did  not  allege 
any  affidavit  for  the  issue  of  first  writ,  or  that  the  writ  com- 
manded the  sheriff  to  take  this  property,  was  insufficient.* 

§  797.  The  same  to  the  affidavit.  The  statute  is  that  no 
plea  in  abatement  other  than  to  the  jurisdiction,  or  when  tlie 
matter  relied  upon  sliall  appear  of  record,  shall  be  admitted 
unless  sworn  to.  But  a  plea  in  abatement  to  the  affidavit 
which  is  not  a  part  of  the  record  must  be  sworn  to.^ 

§  798.     Limitations.    Plea  of  non  cepit  infra  sex  annos  is 

1  Learned  v.  Bryant,  13  Mass.  224. 

2  Reeve  v.  Mitchell,  15  111.  297;  Perigo  v.  Grimes,  2  Col.  656;  Perkins  v. 
Rudolph,  36  111.  307;  Smith  v.  Barse,  2  Hill,  387;  Archer  v.  Hale,  4  Bing. 
(13  E.  C.  L.)464;  Larkin  v.  Robbins,  2  Wend.  505;  Towns  v.  Wilcox,  12 
Wend.  503;  Wells  ■».  Lane,  15  Wend.  99;  Moore  v.  Bowmaker,  1  E.  C.  L. 
Rep.  063;  Bowmaker  v.  Moore,  1  Exch.  Rep.  355. 

3  Thorpe  v.  Starr,  17  111.  199 ;  Camp  v.  Root,  18  Johns.  22 ;  Green  v. 
Patchin,  13  Wend.  293;  Ex  parte  Wright,  6  Cow.  399;  Yates  «.  Russell,  17 
Johns.  401 ;  Merritt  v.  Thompson,  27  N.  Y.  232;  Hills  o.  Passage,  21  Wis.  298. 

4  Beldcn  v.  Laing,  8  Mich.  501. 
"  Town  V.  Wilson,  8  Ark.  465. 


AMENDMENTS  427 

bad;  it  should  he  actio  non  accrevit  infra  sex  annos^  The 
plea  of  non  cepit  infra  sex  annos  is  no  answer  to  the  charge 
of  wrongful  detention;  the  defendant  may  not  have  taken  the 
beasts;  as,  for  instance,  where  a  colt  was  foaled  while  the 
mother  was  in  the  pound,  the  plea  might  be  true,  but  would 
be  no  answer  to  the  plaintiff's  action. ^  Where  the  goods  in 
dispute  are  wrongfully  taken,  the  statute  of  limitations  begins 
to  run  from  the  time  of  taking;  but  where  the  taking  was 
rightful,  the  statute  does  not  begin  to  run  until  demand  and 
refusal,  or  until  the  defendant  shall  have  actually  converted 
the  goods,  or  done  some  act  from  which  the  law  will  imply  a 
conversion.  Thus,  when  goods  were  taken  by  an  officer  on  an 
execution  which  was  afterwards  set  aside  for  irregularity,  which 
rendered  it  void,  the  statute  was  considered  as  beginning  to 
run  from  the  time  of  the  taking. ^  "Where  the  suit  was  for 
notes  deposited  with  the  defendant,  which  w^ere  afterwards 
demanded  of  him  and  delivery  refused,  it  was  held  that  the 
statute  began  to  run  from  the  demand  and  refusal;  and  a  sub- 
sequent demand  and  subsequent  refusal,  after  the  defendant 
had  parted  with  the  property,  would  not  take  the  case  out  of 
the  statute;*  but  if  the  defendant  had  had  the  property  in  his 
hands  at  the  time  of  the  second  demand,  the  statute  would 
undoubtedly  have  commenced  to  run  from  such  second  delivery. 
§  T99.  Amendments.  In  replevin,  as  at  present  adminis- 
tered, liberal  amendments  are  allowed  for  the  furtlierance  of 
justice; 5  or  upon  a  variance  between  the  pleadings  and  the 
proof,  the  former  may  be  amended  or  disregarded  upon  the 
trial,  if  not  calculated  to  prejudice  or  surprise  the  opposite 
party.*  Where  the  avowry  was  for  rent  due  at  the  end  of  the 
year,  and  the  proof  showed  rent  due  half  yearly,  amendment 
was  permitted  without  costs.''     When  the  plaintiff's  writ  by 

'  Arundel  «.  Trevin,  1  Keble,  279. 
2  Gilbert  on  Replevin,  131. 
»  Read  v.  Markle,  3  Johns  524. 

*  Kelsey  v.  Griswold,  6  Barb.  436. 

*  Applewhite  v.  Allen,  8  Humph.  698.     Clerical  mistakes  in  the  form  of 
the  writ.     Cutler  v.  Rath  bone,  1  Hill,  205. 

*  East  Boston  Co.  v.  Persons,  2  Hill,  126 
'lb. 


428  MISCELLANEOUS. 

mistake  stated  that  the  defendant  "has  taken"  and  detain 
and  the  intention  was  to  sue  for  the  detention  only,  amend- 
ment, by  striking  out  the  words  "has  taken,"  was  permitted. ^ 
So  when  tlie  statute  required  sufficient  securities,  and  the  writ 
contained  instructions  to  tlie  sheriff  to  take  "  surety  or 
sureties^''  the  striking  out  the  words  "  surety  or"  was  allowed 
on  motion, 2  Where  the  writ  was  addressed  to  the  sheriff,  but 
was  served  by  the  coroner,  upon  a  motion  to  quash  and  a 
cross-motion  to  amend  by  addressing  it  to  the  coroner,  the 
cross-motion  was  allowed,' 

§  800.  Amendment  of  affidavit.  The  affidavit  may  be 
amended  in  furtherance  of  justice;  this,  however,  can  usually 
be  done  only  by  a  new  affidavit,  supplying  what  was  omitted 
in  the  first,*  Where  affidavit  was  signed  by  plaintiff,  but  no 
jurat,  and  he  filed  affidavit  that  it  was  sworn  to;  AeZc?,  that  the 
affidavit  might  have  been  verified  mine  'pro  tunc.^  In  an  In- 
diana case,  where  the  proceedings  in  the  replevin  suit  had  been 
revised  and  corrected  pending  the  suit  on  the  bond,  it  was  said 
that  tlie  piaintift'  in  the  suit  upon  the  bond  might  tile  supple- 
mental pleadings  to  conform  his  suit  to  the  amendment.^ 
This  carries  the  rule  mucli  farther  than  the  current  of  au- 
thority in  other  States  warrants.  The  plaintiff  may  be  allowed 
to  file  an  amended  bond,''^  or  affidavit,^  in  cases  where  the  court 
judges  proper;  but  such  amendments  are  in  the  discretion  of 
the  court,  and  when  it  appears  that  the  question  raised  upon 
the  bond  or  affidavit  will  be  the  validity  of  a  tax  levy,  the 
leave  will  be  refused. ^  Reasonable  amendments  to  the  plead- 
ing's  are  permitted   whenever   the   ends   ot   justice   will   be 

'  Anoa.,  4  Hill,  603. 

s  Poyen  v.  McNeill,  10  Met.  291. 

3  Simcoke  v.  Frederick,  1  Carter,  find.)  54, 

*  Applewhite  v.  Allen,  8  Humph.  698;  Khrkpatrick  v.  Cooper,  77  111.  5G6, 
s  Beigcsch  V.  Keevil,  19  Mo.  12b, 

»  Wheat  V.  Catterlin,  23  Ind.  85. 

'  Whaling  v.  Shales,  20  Wend.  673;  Smith  v.  Howard,  23  Ark.  203. 

8  Frink  v.  Flanagan,  1  Gilm.  38;  Parks  v.  Barkham,  1  Mich.  95;  Phenix 
r.  Clark,  2  Mich.  327;  Jackson  'o.  Virgil,  3  Johns.  540;  Shelton  v.  Berry,  19 
Tex.  154;  Crist  v.  Parks,  19  Tex.  234;  Eddy  v.  Beal,  34  Ind.  161. 

•  McClaughry  v.  Cratzenberg,  39  111.  123. 


DEATH    OF   PARTY   TO    THE    SUIT.  429 

promoted;    in  case  either  party  is  taken  by  sni^prise,  he  is 
entitled  to  a  continuance,  or  reasonable  time  to  prepare, ^ 

§  801.  Death  of  party  to  the  suit.  It  remains  to  be  con- 
sidered what  effect  the  death  of  a  party  will  have  upon  the 
suit.  Eeplevin  has  ever  been  regarded  as  in  the  nature  of  tort, 
and  snch  actions  die  with  the  person,  in  the  absence  of  statu- 
tory provisions  to  continue  them, 2  So  replevin  has  in  many 
cases  been  held  to  abate  with  the  death  of  the  defendant, ^  and 
judgment  for  return,  which  could  only  be  made  upon  some 
investigation  into  the  merits,  was  refused^  In  Miller  v. 
Langton^  Harper,  (S.  C.)  131,  the  court  says,  in  substance: 
There  is  nothing  in  the  nature  ot  this  action,  nor  in  the  doc- 
trine on  the  subject  of  replevin  under  the  various  statutes  or 
the  common  law,  which  will  make  this  action  an  exception  to 
the  general  rule  in  such  cases,  that  where  the  plaintiff  dies  the 
suit  abates.  The  merits  of  the  case  have  nothing  to  do  with 
the  question  of  abatement.  The  defendant  loses  no  right;  he 
is  only  in  the  situation  of  any  other  person  prosecntino-  a  rio-ht. 
The  writ  of  retorno  cannot  issue,  because  that  would  be  unjust; 
because  the  return  could  only  be  made  upon  a  determination 
of  the  merits,  and  here  no  determination  on  the  merits  can  be 
had.  In  a  case  in  trover  which  arose  in  Pennsylvania  the  court 
said  in  substance:  If  by  possibility  a  case  should  arise  in  M'hich 
there  was  originally  no  other  remedy  than  trover,  we  should  be 
sorry  to  say  that  by  the  death  of  the  defendant  there  should 
be  a  failure  of  justice.  But  there  is  no  question  that  trover 
dies  with  the  defendant;  and  if  the  plaintiii'  might  have  chosen 
another  remed}'-,  and  chose  to  adopt  this  perishable  oue,5  he 

>  Hellings  v.  Wright,  2  Har.  (14  Pa.  St.)  074. 

'  Kingsbury  v.  Lane,  21  Mo.  115. 

3  Webber  v.  Underliill,  19  Wend.  447;  Burkle?;.  Luce,  6  Hill.  5.5S;  Burkle 
v.  Luce,  1  N".  Y.  1G3;  Hopkins  v.  Adams,  5  Abb.  Pr.  R.  3j1  ;  Same  v.  Same, 
6Duer,  G85;  Mellen  v.  Baldwin,  4  Mass.  480;  Foster  v.  Cliambcrlain,  41 
Ala.  lob;  Rector  v.  Chevalier,  1  Mo.  345;  Lock  wood  t.  Perry,  9  Met.  440. 

*  Miller  v.  Langdon,  Harper.  (S  C.)  131;  Merritt  v.  Lumbert,  8  Gr.  (Me.) 
128.  Deatli  of  plaintiff  does  not  abate  the  suit.  Reist  v.  Heilbrenuer,  11 
S.  &  R.  (Pa.)  132. 

'  Hench  v.  Metzer,  6  S.  &  R.  273.  See  Ld.  Mansfield  in  Hambly  v.  Trott, 
Cowp.  374. 


430  MISCELLANEOUS. 

has  no  ground  of  complaint  if  his  action  perish.  Bat  these 
cases  do  not  stand  alone.  In  an  able  case  in  Pennsylvania  it 
was  said:  "Eeplevin  does  not  abate  by  the  death  of  a  defend- 
ant while  the  suit  is  pending;  where  one  man  has  property  of 
another  in  his  possession,  his  fortune  ought  to  answer  it."i 
The  reason  for  the  rule  which  abated  such  suits  was,  that  an 
action  for  tort  was  purely  personah  When  the  tort  feasor 
retains  the  property,  all  reasons  seem  to  point  to  the  justice 
of  making  his  representations  answer  for  its  delivery.  In 
Maryland  it  is  held  that  the  suit  does  not  abate  by  the  death 
of  the  plaintiff;  his  executor  or  administrator  may  be  made 
party  and  prosecute. 2  So  in  New  York;  it  survives  the  death 
of  the  plaintiff,  and  is  continued  in  the  name  of  his  repre- 
sentatives; the  sureties  continue  to  be  liable;  but  it  does  not 
survive  the  death  of  the  defendant. ^ 

'  Keite  v.  Boyd,  IG  S.  &  R.  301. 
2  Fister  v.  Beall,  1  Har.  &  J.  (Md.)  31. 

2  Laliley  v.  Brady,  1  Daly,  443.    See  Heinmuller  v.  Gray,  44  How.  Pr. 
260;  Emerson  v.  Bleakley,  3  Abb.  Dec.  22. 


INDEX. 


EEFERENCES  ARE  TO   SECTIONa. 


A 

BECTION. 

A.BATEMENT, 

of  suit  by  death  of  party 801 

effect  of,  oa  conditions  of  bond 418 

of  writ  — 

where  bond  is  not  given 391 

wiiere  bond  is  defective.. 391 

return  does  not  necessarily  follow 485 

for  mistake  of  clerk  return  not  adjudged.. 501 

plea  of.    (See  Plea  in  Abatement.) 
ACCIDENT, 

confusion  of  goods  of  different  owners  caused  by;  rights  of 

each 196  etseq. 

ACCOUNTS, 

cannot  be  adjusted  in  replevin 630 

ACTION, 

replevin  a  proceeding  partly  in  rem  and  partly  in  personam        84 

form  of,  in  diff"erent  States ..        36 

cepit  detinet  a,n(i  detinuet 53 

similar  to  trespass  and  trover 45,  47 

peculiarities,  privileges  to  plaintiff" 37 

formerly  would  lie  only  for  distress ..  41-43 

title  and  right  to  possession  investigated 39 

actual  detention  necessary  to  sustain 52 

scope  of  the  investigation 55-57 

lies  only  for  chattels 58  et  seq. 

what  is  or  is  not  real  estate,  may  be  investigated. 64  et  seq. 

for  what  it  lies 59  et  seq. 

ACTOR, 

meaning  of  the  term 21 

when  and  how  defendant  becomes..... 481 

(431) 


432  INDEX 

SECTION. 

ACT  OF  GOD. 

effect  of,  on  condition  of  bond 418 

affecting  questions  of  damages -  600 

ADVERSE  POSSESSION  OF  CHATTELS, 

owner  may  sell,  notwithstanding 640 

ADVERSE  POSSESSION  OF  REAL  ESTATE, 

chattels  severed  under,  replevin  does  not  lie _. 83  et  seq. 

ADVERSE  TITLE  TO  REAL  ESTATE, 

when  a  defense  in  a  suit  for  chattels  severed 81 

AFFIDAVIT, 

by  whom  must  be  made 655 

must  not  be  entitled 65'3 

takes  the  place  of  the  plaint 654 

not  a  part  of  the  record 650 

Contra,  see  note  3  this  section. 

is  the  foundation  of  the  suit 6G5 

a  prerequisite  to  the   issuance  of  the  writ  or  order  for 

delivery 651 

strict  compliance  with  the  statute  required  la 663,  664 

general  requisites  of 655 

must  state — 

that  the  plaintiff  is  owner  of  the  goods. 655 

meaning  of  "owner " 656 

that  the  plaintiff  is  entitled  to  immediate  possession  655 
that  the  property  has  not  been  taken  for  any  tax 

assessment,  etc 238,  661 

that  the  property  has  not  been  seized  on  execution, 

etc.,  against  plaintiff 663 

or  taken  on  a  writ  of  replevin  or  order  for  delivery  663 

must  describe  the  property  accurately 665 

must  state  the  value 659 

must  be  framed  to  meet  the  evidence 653 

not  evidence  for  plaintiff 651 

not  essential  to  the  trial 651 

truth  of  cannot  be  questioned  on  trial  of  the  issue 651,  658 

statement  of  value  in,  how  far  binding  on  the  parties 650,  660 

statement  of  value  in,  does  not  bind  sheriff  in  fixing  penalty 

in  bond 400 

writ  must  follow — 

in  description  of  property 665 

in  statement  of  action 653 

statement  of  wrongful  taking  not  sustained  by  proof  of 

wrongful  detention 653 

amendments  to,  how  made 665,  800 

when  defects  in  must  be  taken  advantage  of 657 

loss  of,  how  supplied 658 

variance  in  description  from  bond  no  defense  to  suit  on  bond  451 


INDEX.  433 

SECTION. 

"AGAINST  SURETIES  AND  PLEDGES," 

origin  and  meaning  of. 20 

AGENT, 

demanding  goods  must  produce  his  authority 380 

when  he  may  sustain  replevin 132 

not  a  proper  defendant  for  goods  of  principal 14-1 

express  or  railroad,  when  demand  upon  sufficient 379 

when  may  be  sued  in  replevin 144 

AGREEilENT, 

to  take  or  convert  will  not  sustain  replevin 137 

ALIAS  WRIT, 

formerly  issued  with  the  original 13 

of  replevin,  when  may  issue 460 

may  issue  to  another  county 4G6 

ALTERATION  OF  BOND, 

material  will  avoid  it 433 

AMENDMENT, 

rules  concerning 665,  799 

not  allowed  where  it  will  raise  question  of  validity  of  a  tax 

levy „_ 228 

of  affidavit,  how  made 665,  800 

of  writ  by  addressing  it  to  coroner 463 

ANIMALS, 

young  of,  born  pending  suit,  follow  judgment 136,  500 

APPRAISEMENT  OF  VALUE, 

to  fix  penalty  in  bond 400 

sherifi:  may  take  goods  to  make 391,401 

not  binding  on  parties 453 

goods  taken  for  purpose  of,  must  be  returned  unless  bond  is 

given 391 

not  evidence  of  value  in  assessment  of  damages 570 

APPEAL, 

effect  of  on  condition  to  prosecute  with  effect 417 

by  defendant,  plaintiff  bound  to  follow 417 

ARBITRATION, 

submission  of  suit  to,  effect  on  security . 795 

submission  to,  does  not  bind  security 435 

by  consent  of  the  parties  releases  securities 452 

AEREST  OF  DEFENDANT, 

when  allowed  for  concealing  property  to  avoid  writ 135 

ASSESSMENT  OF  DAMAGES, 

when  and  how  made 608 

after  dismissal  of  suit  by  plaintiff 516 

generally  dependent  on  local  statute 609 

See  Damages. 

made  to  time  of  rendition  of  judgment ...  525 

28 


434  INDEX. 

SECTION. 

ASSIGNEE, 

of  property  in  adverse  possession  of  another,  when  can  sue 

in  replevin 639 

ASSIGNEE  IN  BANKRUPTCY, 

entitled  to  goods  of  bankrupt 106 

ASSIGNEE  OF  FRAUDULENT  PURCHASER, 

replevin  bj'- defravided  vendor 325 

ASSIGNEE  FOR  BENEFIT  OF  CREDITOR, 

damages  to,  against  a  sheriff 5G8 

ASSIGNMENT, 

of  replevin  bond  by  sheriff 387 

ATTACHMENT, 

sheriff  levying  has  a  special  property 130,  300 

defendant  in,  cannot  replevy  property 248 

sheriff  defending  under  must  aver  a  debt  to  the  plaintiff.. 303,  687 
ATTACHING  CREDITOR, 

not  jointly  liable  with  officer  for  taking 646 

of  fraudulent  purchaser,  replevin  by  defrauded  vendee 324 

AUCTIONEER, 

selling  stolen  goods,  when  liable . 364 

when  he  may  sustain  replevin 133 

AUTHORITY  OF  BAILEE, 

purchaser  from,  must  take  notice . 313 

AVOWANT, 

judgment  in  favor  of,  under  English  statutes —  885 

AVOWRY  AND  COGNIZANCE, 

defined 33,  725 

distinction  between  these  pleas — 726 

defendant  may  make 23 

by  avowry  or  making  cognizance  defendant  becomes  an 

actor  or  plaintiff 31,  481 

form  of  these  pleas 733 

in  the  nature  of  a  declaration — 727 

exactness  required 727 

must  state  a  tenancy 730 

must  admit  taking 727 

must  sufficiently  justify  taking 738 

pleas  to,  like  pleas  to  a  declaration 733 

plea  of  set-off  not  allowed 734 


B. 

BAILEE, 

rights  and  authority  of -..-. 98,  313 

may  have  right  of  possession  against  owner 123 

has  an  interest  which  may  be  sold  on  execution 98 

when  he  may  sustain  replevin 97  et  seq.,  644 


INDEX.  435 

SEcnoK. 
BAILEE  —  Continued. 

■when  may  sustain  replevin  asrainst  owner 121 

sale  by,  without  authority,  void 313 

pledging  goods  without  authority,  void 316 

selling  goods  in  payment  of  his  own  debt 314 

general  business  of — when  notice  of  his  authority 313 

wrongful  sale  by,  conveys  no  title 314 

selling  for  less  price  than  authorized  does  not  avoid  sale 317 

setting  up  ownership  forfeits  his  right  to  demand 373 

converting  property  not  entitled  to  demand 358 

refusal  to  deliver  by,  must  state  the  true  grounds 381 

for  a  particular  purpose  cannot  use  for  another 313 

when  not  bound  to  incur  hazard  of  a  suit 794 

of  goods  wrongfully  taken,  may  surrender  to  true  owner  _.  314 

should  notify  owner  of  an  adverse  claim 794 

BANKRUPT, 

assignee  of,  entitled  to  goods.. . 106 

has  title  against  all  but  his  assignee .  106 

BILL  OP  LADING, 

transfer  of,  when  sufficient  to  transfer  title  to  goods 193 

accompanied  by  draft,  consignor  must  pay  draft 194 

transfer  by,  may  be  explained 194 

BONDS, 

which  can  be  identified  may  be  recovered  in  replevin 59, 177 

BOND, 

no  bond  required  by  common  law 384 

first  appearance  of,  in  our  l^iws 27 

English  Statutes  basis  of  law  concerning,  in  this  country..  385 

a  prerequisite  to  delivery 388 

wealth  of  defendant  no  excuse  for  not  giving 390 

permission  to  sue  as  a  pauper  does  not  excuse  giving 3y9 

deposit  of  money  cannot  be  accepted  in  lieu  of 408 

writ  quashed  when,  is  not  given 388 

characteristics  of  the  contract 398,411 

object  to  securesheriff 427 

objects  and  purposes  under  present  practice 398 

must  conform  to  statute 392 

executed  on  Sunday,  when  void 409 

Sunday  not  counted  in  computing  time  to  give .  409 

how  executed 408 

by  whom,  must  be  executed 40G 

by  stranger  to  suit,  for  plaintiff" 407 

should  state  the  court  where  suit  is  pending 41/. 

must  describe  the  suit 411 

must  desc|;ibe  the  goods .,  4l2 

must  name  parties 411 

must  contain  name  of  defendant  in  suit 439 


436  INDEX. 

SECTION. 

BOI^D  — Continued. 

omission  to  name  defendant  a  fatal  defect  in 411 

penalty  must  be  double  the  value  of  the  goods 290,  393,  400 

suit  dismissed  when  the  penalty  is  insufficient 392 

must  be  for  a  definite  sum 412 

must  state  value  of  goods _.  412 

value  of  various  articles  stated  in  gross  in 454 

two  securities  required _ 885 

to  whom  payable 403 

made  to  sherifl'  or  defendant 385 

when  right  of  action  accrues  upon 428 

construction  of,  in  suit  upon 404,  405 

intent  of  parties  will  control 427 

clerical  errors  in,  will  not  vitiate 439 

defendant  cannot  plead  that  it  was  for  ease  and  favor 438 

ambiguous  words,  how  construed 439 

suit  on  —  irregularities  in  issuing  the  writ  will  not  defeat..  440 

variance  in  description  from  affidavit  no  defense  to  suit  on.  451 

non-conformance  to  the  statute  does  not  vitiate 436 

failure  of  defendant  to  take  advantage  of  defects  in,  does 

not  defeat  him  in  suit  on 437 

valid,  though  given  after  the  writ  was  served. _ 439 

conditioned  to  be  void,  if  the  obligor  should  not  pay,  will 

not  defeat 439 

in  less  than  double  the  value  of  the  property,  not  therefore 

void 437 

error  in  recitals  does  not  vitiate 436 

when  the  signature  of  one  of  the  securities  is  a  forgery, 

may  be  enforced  against  the  other 437 

•with  one  security,  may  be  enforced _.  437 

defective  as  a  statutory,  may  be  good  as  a  voluntary  obliga- 
tion  404 

defendant  may  waive  defects  in,  and  accept 437,  446 

failure  to  take,  does  not  aft'ect  jurisdiction  of  the  court 410 

duty  of  plaintiff  to  prepare  and  tender 402 

officer  not  required  to  make  out 402 

duty  of  ofiicer  to  take 289,  384 

coroner  must  take,  when 394 

clerk,  not  sheriff,  takes  in  some  States 290 

officer  must  see  it  properly  executed 410 

officer  liable  for  delivering  goods  without 891 

liable  for  the  sufficiency  of  the  securities 385 

defendant  may  except  to  form  of  securities 399 

not  necessary  to  trial 393 

not  necessary,  unless  plaintiff  asks  delivery..... 396 

supplies  the  place  of  property  distrained 470 

conditions  of 29.  385,  396 


INDEX.  437 

SECTION. 

BOND  —  €(fnttnued. 

condition  of  separate  and  independent . 413 

failure  to  keep  all,  a  breach  of.. 4i:i 

part  of  the  conditions  may  be  void,  and  others  valid 413 

condition  to  prosecute  without  delay,  how  broken 414 

condition  to  prosecute  with  ellect ., 415 

breach  of  condition  to  prosecute  with  etlect 410 

condition  to  pay  such  damages  as  shall  be  adjudged _  430 

condition  to  return,  etlect  of 419 

failure  to  return  when  ordered,  a  breach  of 423 

requires  the  return  of  the  identical  goods. 421 

requires  return  of  goods  in  as  good  order  as  when  taken...  422 
award  of  return  not  necessary  to  a  breach  of  other  condi- 
tions    428 

actual  return  a  compliance  with  that  condition 42(> 

what  is  a  breach  of 411) 

efiectof  death  of  party  on  conditions 418 

rights  of  securities  on 429 

securities  liable  only  for  the  letter  of  their  contract 430 

securities  in,  not  discharged  by  settlement 434 

securities  on,  not  liable  for  costs,  unless  so  provided 432 

securities  bound  by  the  result  of  the  suit 433 

intent  of  makers  will  govern 431) 

securities  on,  have  a  right  to  return  the  goods 429 

substitution  of  new,  will  discharge  securities  in  old; 44(! 

assignable  to  defendant 385 

parties  to  suit  on,  cannot  discharge  it  to  the  injury  of  sheriff  456 

suit  on,  where  the  merits  are  not  tried  in  replevin  suit 448 

judgment  for  return  not  essential  to  create  liability  on 430 

ownership  of  property  cannot  be  questioned  in  suit  on, 

when  settled  in  replevin  suit 447,448 

only  relates  to  claims  in  the  suit  in  which  it  is  given 424 

summary  proceedings  upon 440 

release  of,  discharges  sheriff 45(5 

proceedings  in  replevin  suit  essential  to  suit  upon 443 

securities  in  not  bound  by  submissions  to  arbitration  with- 
out their  consent 435 

security  in  bound  by  acts  of  principal 433 

securities  liable  for  what  their  principal  is  lawfully  adjudged 

to  do 429 

suit  on,  value  and  interest  allowed  on 540 

suit  on,  when  value  is  given  as  damages 458 

efl'ect  on,  of  submission  to  arbitration 795 

actual  delivery  of  goods  precedes  liability  on 425 

any  material  alteration  avoids  it 432 

court  cannot  vary  or  enlarge  conditions 429 

assignment  of  breaches  in  suit  on 441 


438  INDEX. 

•  SECTION. 

BOND  —  Continued. 

what  is  a  sufficient  assij^uraent  of  breaches 443 

defenses  in  suit  on,  which  should  be  made  in  replevin  suit..  449 

debt  a  proper  form  of  action  on 441 

what  facts  material  to  be  set  up  in  suit  on 444 

defenses  to  suit  on 404,405,450 

damages  on,  how  assessed.. 457 

compensation  the  rule  for  damages  on 457 

value  stated  in,  how  far  binding 453 

defects  in,  how  and  when  taken  advantage  of 392,  410 

technical  defenses  to,  not  favored _. 436 

writ  issuing  without  affidavit  no  defense  to  suit  on 451 

proceedings  in  replevin  suit  essential  to  suit  on 443 

right  of  action  accrues  upon  failure  to  keep  any  of  the  con- 
ditions   428 

judgment  on,  form  of 457 

sheriff's  return  must  show  taking  of 468 

limitation  to  suit  on 461 

partner  cannot  sign  his  co-partner's  name 409 

amended,  may  be  filed 409 

lost  from  files,  how  supplied 445 

lost  by  officer,  damages  for 595 

guardian  executing  liable  personally 438 

by  defendant  — 

when  defendant  may  give,  and  retain  the  property  .  395 

sherifi'  should  allow  reasonable  time  for 298 

BORROWER, 

cannot  set  up  title  against  lender 103,  358 

demand  on,  when  necessary 358 

claiming  in  defiance  of  lender  is  a  conversion 358 

BREACH, 

assignment  of  in  suit  on  bond 441 

what  is  a  sufficient  assignment  of 443 

to  prosecute  with  effect 415,  41G 

to  prosecute  without  delay — 414 

to  make  return  if  return  be  ordered 419 

identical  goods  must  be  returned 431 

actual  delivery  precedes  breach  of 425 

judgment  for  return  is 423 

BUILDINGS, 

prima  facie  real  estate . .  61 

placed  on  another's  land  by  mistake 77 

when  replevin  lies  for 76 

BURDEN  OF  PROOF, 

on  plaintiff  upon  question  of  return 495,  689 

where  defendant  does  not  traverse  plaintifi''s  right  upon  a 

plea  of  justification - 697 


INDEX.  439 

c. 

6ECTI0N. 

CARRIER, 

cannot  show  title  in  a  third  party  against  consignee 104 

goods  taken  from  on  writ  against  owner 104 

liable  for  goods  wrongfully  taken  and  committed  to  his 

care 315 

goods  taken  from,  owner  may  sustain  replevin 128 

has  lien  on  goods  transported . 370 

has  no  lien  on  goods  wrongfully  in  his  care 315 

CASTLE, 

does  not  protect  goods  of  another 287 

CEPIT, 

replevin  in 53 

CEPIT  IN  ALIO  LOCO, 

plea  of  form  and  effect  of 707 

CHANGE  OF  FORM  OF  GOODS, 

effect  of  on  parties'  rights 210  et  seq. 

rule  of  the  civil  law  in  such  case 211 

by  agreement 220 

does  not  change  title 213 

destroying  identity,  replevin  does  not  lie.. 214 

by  taker  in  good  faith,  how  affecting  question  of  damages.  617 

trespasser  enhancing  value,  effect  of 215 

wrought  by  an  innocent  holder 213 

owner  must  reclaim  before  greatly  enhanced 217 

by  trespasser,  effect  of  on  question  of  damages 567,  617 

CHANGING  MARKS  TO  PRODUCE  CONFUSION. 

effect  of,  innocent  party  may  take  all 202 

CHATTELS, 

what  are  chattels 58 

recoverable  in  replevin 31 

title  to,  tried  in  replevin 39 

severed  from  real  estate,  after  ejectment 78 

attached  to  real  estate  — 

when  they  become  real  estate 77 

replevin  does  not  lie  fur 63 

trade  fixtures  may  be 67 

actual  severance  from  realty  not  necessary  to  constitute 69,  70 

fixed  to  land  of  another 77 

of  another  taken  and  fixed  to  land 77 

timber  taken  and  built  into  a  house 221 

crops  harvested  after  ejectment ^'5etseq. 

severed  from  real  estate  — 

by  a  trespasser,  owner  can  recover 81,  82 

by  one  in  possession,  holding  color  of  title 82  ^^  seq. 

title  to  real  estate  evidence  of  title 79,  80 


^r-iO  INDEX. 

SECTIOH. 

CHATTELS  —  Continued. 

Severed  from  real  estate  —  Continued. 

when  a  mortj;agee  may  recover 90  et  seq. 

holder  of  colorable  titles  cannot  recover 81,  82 

when  finder  of  can  sustain  replevin 115  et  seq. 

writ  does  not  authorize  severance  of  from  real  estate 293 

when  sheriff  may  sever  from  real  estate 64 

whether  articles  are,  tried  in  replevin 64  et  seq. 

CHATTEL  MORTGAGE, 

distinction  between,  and  pledge 2226 

an  absolute  conveyance  of  title 222  a 

mortgageor  has  an  interest  which  may  be  seized  and  sold..    222  b 

insecurity  clause  in,  effect  of 2226 

rights  of  mortgagee  under 223 

sale  by  mortgageor,  mortgagee  may  replevin 223 

CIVIL  LAW, 

rule  of  with  respect  to  effect  of  change  of  form  of  another's 

goods 211 

CLAIM  AND  DELIVERY. 

form  of  this  action  in  many  States 509 

distinction  between,  and  replevin 509 

CLAIM  OF  LIEN, 

when  a  conversion ,. . .. ..      363 

CLAIM  OF  OWNERSHIP, 

waiver  of  demand,  when . 374 

CLAIM  OF  PROPERTY  BOND, 

by  defendant,  effect  of 298 

CLOTHING, 

worn  on  the  person  not  subject  to  writ  of  replevin 59,  148 

COAL, 

dug  on  land  of  another,  when  value  estimated 614 

COGNIZANCE, 

defined 23 

CONFUSION, 

of  goods  of  different  owners,  what  is 196,  198 

fraudulent,  all  belongs  to  innocent  party _.       197 

when  it  does  not  change  owner's  rights 201 

in  case  of  grain 203  et  seq. 

CONSIGNOR, 

replevin  by  against  consignee  when  latter  refuses  to  pay 

draft 194 

CONSENT  OF  VENDOR, 

what  is,  to  a  sale Z20  et  seq. 

CORONER, 

writ  may  be  addressed  to 463 

must  take  bond,  when 894 

COST, 

of  moving  property  not  included  in  damages ..      578 


INDEX.  441 

BECnoN. 

COMMENCEMENT  OF  SUIT, 

dite  of  writ  not  couclusive -      793 

COMPENSATION. 

the  object  in  awarding  damages 457,  530 

rule  does  not  apply  when  taking  was  with  malice 533,  546 

how  fixed 531,  533 

CONDITIONS  OF  BOND, 

separate  and  independent 413 

court  cannot  vary  or  enlarge 429 

failure  to  keep  all,  occasions  forfeiture 413,  428 

if  broken,  suit  on  bond  for 3c5 

to  prosecute  with  eflect  — 

what  is  a  breach  of 415,416 

dismissal  by  consent  a  breach  of. 417 

judgment  for  return  not  necessary  to  constitute  a 

breach  of. 415 

prosecution  in  inferior  court  not  sufficient  where 

case  is  appealed 417 

to  prosecute  without  delay  — 

how  broken 414 

CONDITION  TO  RETURN, 

actual  deliver}^  precedes  liability. 425 

what  is  a  breach  of 419 

if  return  be  awarded  —  no  breach  of  this  condition  unless 

there  is  a  judgment  for  a  return.. 419 

judgment  for  return  a  breach  of 423 

actual  return  a  compliance  with 426 

securities  may  return  if  they  see  fit 429 

requires  the  return  of  the  identical  goods 421 

fulfilled  if  sheriff  seize  same  property 426 

duty  imposed  by  this  condition 419 

performance  of 419 

effect  of  death  of  party  pending  suit 418 

effect  of  death  or  destruction  of  property  upon 455 

COLORABLE  TITLE  TO  REAL  ESTATE, 

holder  of  cannot  recover  chattels  severed 81,  83 

CONDITIONAL  SALE, 

non-compliance  with,  replevin  lies 841 

CONVERSION, 

meaning  of  the  term 349,  351 

what  is 349,  363,  305 

demand  and  refusal  not  a  conversion 349 

presumption  of,  from  refusal  to  deliver 351 

neglect  to  deliver,  when  not  _ 138,  139 

an  agreement  to  take  is  not 137 

actual  control  necessary  to  constitute 353 

presumed  from  refusal  to  deliver 373 


4:12  INDEX. 

BECnOK. 

CONVERSION  —  Continued.  , 

taking  with  owner's  consent  is  not 140- 

offer  to  deliver  at  another  place  is  not 383 

when  presumed  to  take  place 372 

demand  not  necessary  after 346,  373 

what  is,  by  innocent  receiver  of  stolen  fjjoods 364 

by  bailee,  of  chattels,  for  a  particular  purpose 312 

damages  estimated  from  time  of 534 

wrongful  use  of  hired  property  is ... 363 

CONFUSION, 

of  grain  of  different  owners ..196,  203  et  seq. 

by  accident  or  mistake,  tenancj''  in  common  arises 197  et  seq. 

does  not  produce  tenancy  in  common  unless  separation  is 

impossible 201 

willful,  all  belong  to  innocent  party 197  et  seq. 

CONCEALING, 

removing  property  to  avoid  writ,  effect  of 135 

CONSTRUCTION. 

of  bond... 404,  405,  427 

"'I'  promise  to  pay  " 410 

CONTINUANCE, 

anciently  not  allowed  defendant 21 

CONTRACT  OF  SALE, 

does  not  vest  title  in  the  buyer  unless  the  goods  are  sepa- 
rated, or  can  be  distinguished 186 

CORONER, 

writ  may  be  ad  Iressed  to,  when _      4G3 

must  take  bond,  when 394 

CORPORATION, 

may  bring  replevin . 638 

COSTS, 

of  moving  property  not  damages. 578 

COUNT  IN  TROVER, 

purely  statutory 669 

CREDITOR, 

in  execution  or  attachment  not  jointly  liable  with  officer, 

unless  betakes  possession 143 

CREDITORS. 

attaching  goods  fraudulently  purchased 324 

CROPS,  GROWING, 

replevin  lies  for 74 

CROSS-REPLEVIN, 

defined 258  et  seq. 

not  permitted 256  et  seq. 

CUSTODY  OF  THE  LAW, 

goods  in,  not  repleviable 243,  244,  252,  276 

wrongful  seizure  does  not  amount  to 245 


443 

INDEX.  **^ 

SECTION. 


CUSTODY  OF  THE  LAM  —  CorMnued. 

'l ■±iu,  -xivt/u 

4G0 


^oodVtaken  on  writ  of  replevia  in 470,  476  et  seq. 

power  oi  tlie  court  over  goods  in 


D. 

DAMAGES,                             ^  g^  33 

recoverable  in  replevin ' 

English  statutes  tlie  origin  of  the  law  in  this  country &li 

reasons  for  the  rule  awarding 


an  essential  one  in  replevin 


511 

question  an  essential  one  lu  ix^yi^y^u. ^^^ 

to  plaintiff ■■ * k^} 

at  common  law.  not  allowed  to  defendant ^^^ 

allowed  to  defendant  by  statute ^^_^ 

to  defendant,  in  modern  practice ^^ 

not  allowed  to  defendant  unless  he  had  the  property 51d 

not  allowed  to  defendant  unless  he  claims  return ^- 

only  allowed  to  defendant  where  he  is  entitled  to  return...  OU.^ 

rules  in  actions  of  tort  usually  apply ^~  ^ 

allowed  only  as  an  incident  to  judgment  for  the  property..  olo 

must  be  claimed  in  declaration 'j~' 

failure  to  claim  a  fatal  defect 

usually  awarded  to  successful  party ^ 

may  be  awarded  to  both  parlies ^^^ 

when  and  how  assessed Vn-'^op  k'^r 

..  ,.  52o,  520,  odo 

no  uniform  rule 

rule  in  Suydam  v.  Jenkins ^^^ 

compensation  the  object 

compensation  the  rule  when  no  malice  exists &^^ 

double  not  allowed 

ia  a  suit  for  detention,  proof  of  wrongful  taking  not  proper  ^^ 

to  affect --- _„_ 

party  claiming  must  do  what  he  can  to  avoid  loss -  5.D 

nominal  where  suit  is  dismissed  for  informality 517,  51» 

when  taking  was  wrongful,  estimated  from  the  time  of  ^^^ 

taking ; -.,. 

when  taking  was  rightful,  from  time  of  conversion.....  534 

plaintitf  cannot  dismiss  to  avoid  a  hearing  on  question  of.482,  ol6 

special  must  be  specially  alleged ----- 5^1.  ^^^ 

only  nominal  allowed,  unless  proof  of  actual  injury 526,  5.8 

where  plaintiff's  title  is  divested  after  suit  brought 589 

right  of  plaintiff  at  the  time  of  judgment  controls 5Sy 

diltinction  between  replevin  and  trover »-" 

highest  market  value,  when  allowed -      ^j^ 

qualifications  of  rule  allowing  highest  value 5od,  oo4 

suit  must  be  brought  within  reasonable  time 5od.  5o4 

market  value,  how  ascertained aoo,  ooo 


444  INDEX. 

BBCTION. 

DAMAGES  —  Continued. 

place  -where  value  is  considered  as  attaching 562  et  seq. 

value  of  goods  not  obtained  on  the  writ _ 539 

value  allowed  in  case  return  cannot  be  had 543  et  seq. 

where  value  of  property  is  stable 548 

where  value  of  property  is  fluctuating 531,  533 

value,  when  regarded  as  attaching 545 

party  claiming  value  must  show  himself  to  be  owner 556 

value  and,  must  be  separately  assessed 610 

when  value  is  not  allowed 543  et  seq. 

plaintiflf  cannot  have  value  when  he  has  the  goods 543  et  seq. 

as  between  joint  owners 598 

between  general  owner  and  a  trespasser 587 

between  general  owner  and  owner  of  a  limited  interest 588 

against  officer  for  failing  in  his  duty 596 

between  officer  and  stranger  to  the  process 593 

pledgee  may  recover  full  value  against  a  stranger 589 

between  the  general  owner  and  a  stranger  to  the  suit 588 

between  the  holder  of  a  limited  interest  and  the  holder  of 

the  general  property 588 

assignee  for  creditors  against  sheriil 590 

between  bailee  and  general  owner 587 

between  general  owner  and  holder  of  lien 584 

pledgee  not  entitled  to  value  of  use  as 581 

as  between  owner  of  a  limited  interest  and  a  stranger,  full 

value  allowed 587 

between  officer  and  general  owner 593 

as  between  officers  holding  different  processes 597 

officer  acting  in  good  faith,  exemplary  not  allowed 591 

officer  for  wrongful  seizure 590 

officer  acting  with  malice 593 

for  seizure,  exempt  property  on  execution 271 

officer  losing  bond 595 

■where  defendant  puts  it  out  of  officer's  power  to  serve  writ.  146 

statement  of  value  in  affidavit,  how  far  binding 569 

depreciation  in  value,  when  an  element 535 

increase  in  value,  how  allowed ._  523 

interest  on  value,  when  a  measure  of  damages 537 

interest,  from  what  time  computed 538 

from  time  of  conversion,  when  allowed 547 

not  allowed  when  value  of  use  is  given 583 

when  part  only  of  the  goods  are  found 539 

allowed  in  suit  on  bond 540 

■when  defendant  is  a  stakeholder 543 

perishable  goods  pending  suit 471 

change  of  form  affecting  — 

by  agreement  of  parties 220 


INDEX.  ^^^ 

BECTION 

DAMAGES  —  Continued. 

Change  of  form  affecting  — Continued. 

■when  it  does  not  change  title 219 

where  tlie  change  is  by  mistake 219 

Tviiere  the  change  is  by  a  trespasser 219 

chattels  annexed  to  real  estate 221 

coal  dug,  or  timber  cut <513,  614 

timber  converted  into  boards ^^" 

trespasser  cannot  make  a  profit  by ^^^^ 

description  to  be  employed 222 

loss  of  business,  how  far  compensated  iu 572 

interruption  to  business 5^o 

prospective  profits  not  allowed 5^o 

near  or  probable  profits,  when  allowed 574 

profits  of  illegal  business  not  allowed 5^3 

counsel  fees,  when  allowed - 576 

barred  by  surrender  of  goods  before  suit  begins 513 

expenses  of  moving  property,  costs  not 578 

in  a  suit  for  note  or  bill 557  et  seq.^ 

when  jury  allowed  to  estimate 54b 

verdict  must  find -  *"^ 

■when  suit  is  dismissed  for  informality,  court  will  hear  evi- 

dence  upon 51 J 

assessed  to  the  time  of  judgment 52o 

party  claiming  must  show 528 

•where  goods  are  delivered  without  bond 388 

■wool  shorn  from  sheep  pending  suit  compensated  in  ....  ..  500 

■when  one  deprives  the  other  of  power  to  show  real  quality, 

best  quality  will  be  presumed 556 

how  awarded  to  one  joint  owner 459 

sales  of  property  by  factor  without  orders 549  et  seq. 

to  compel  return  of  property 607 

pretium  affectionis  family  pictures 568 

trespasser  not  excused  by  destruction  of  property 600 

cannot  be  greater  than  claimed 611 

against  innocent  holder  who  enhances  value 217 

coin,  when  a  measure  of 560 

return  of  property  in  mitigation  of 483 

■when  defendant  may  show  he  owned  the  property  in  miti- 

gation  of 4«< 

where  defendant  retakes  the  property  by  force 146 

on  bond  — 

when  right  of  action  accrues 428 

securities  liable  only  for  their  express  covenants..  429 

securities  may  return  the  property 429 

how  assessed 4a7 

nominal  unless  actual  shown 458 


446  -  INDEX. 

BECTIOK. 

DAMAGES  —  Continued. 

On  bond  —  Continued. 

when  only  those  "adjudged"  in  the  replevin  suit.  430 

no  liability  unless  delivery  of  goods  on  the  writ 425 

not  for,  in  another  suit 4v;4 

where  the  parties  are  joint  owners ._  459 

amount  of 458 

effect  of  seizure  on  another  writ 400 

destruction  of  property  pending  suit 455 

value  of  use  — 

rule  allowing  peculiar  to  replevin 520,  580 

allowed  only  where  property  is  chiefly  valuable  for 

use 583 

illustrations  of  the  rule 579 

only  allowed  to  party  who  has  a  right  to  use 580 

and  is  in  a  situation  to  use  it 580 

not  allowed  an  oflScer 581 

or  pledgee 581 

depreciation  in  value  not  allowed  with  use 582 

interest  not  allowed  with  use 583 

vindictive  — 

meaning  of  the  term 620 

rule  for  the  assessment  of 618  et  seq. 

revengeful,  not  allowed .. 620 

no  general  rule  governing 623 

actual  malice  or  wanton  carelessness  must  be  shown  623 

care  to  be  exercised  in  assessing 621 

illustrations  of  the  rule.. 624  et  seq. 

where  the  taking  was  with  malice 546 

when  party  acts  in  defiance  of  another's  right 627 

against  officers  of  the  law 628 

not  allowed  against  officer  for  mistake 629 

DEATH  OF  PARTY, 

effect  upon  bond 418 

effect  of  on  suit 801 

DEATH  OR  DESTRUCTION  OF  PROPERTY, 

replevin  does  not  lie  after 136 

wrongful  taker  not  permitted  to  set  up  as  a  defense 455,  600 

judgment  for  value  notwithstanding 601,  602 

emancipation  of  slaves 603 

effect  of  on  bond 455 

on  question  of  damages 600 

goods  pending  suit,  at  whose  risk 471 

perishable  goods 471 

judgment  in  such  cases .- 787 

DEBT, 

u  proper  form  of  action  on  replevin  bond 441 


4-1-7 

INDEX.  ** ' 

8ECTI0N. 

DECLAEATION, 

when  averment  of  demand  necessary  in o^^ 

■whether  averment  of  right  of  possession  is  sufficient 677 

must  allege  property  in  plaintiff ^'■^ 

count  in  trover  for  goods  not  delivered o"^ 

must  follow  the  writ ^' 

must  state  time  and  place ^''^ 

must  aver  title  by  traversable  averment ""'^ 

may  contain  several  counts ^jj^ 

rights  of  parties  under  a  single  count 607 

should  state  value  of  property ^^^ 

description  of  property  in ''^ 

omission  to  claim  damages  fatal 512,  68^ 

■when  must  allege  special  damages ^^ 

averment  of  wrongful  detention  essential ^"^^ 

■wrongful  detention  does  not  sustain  charge  of  wrongful 

^  ,  .                                                                               ._  670 

taking 

when  it  should  aver  wrongful  taking 670 

DEFENSE, 

separate  for  separate  parties ^^* 

title  as.  must  be  shown  when  suit  began 685 

on    1 07 

right  of  possession  as *^*^'  ^"' 

102 
ownership  not  necessary 

legal  title  superior  to  equitable l^'^ 

to  suit  on  bond  — 

technical  not  favored ^^'^ 

should  be  made  in  replevin  suit 449 

general  rule ^^^ 

DEFENDANT, 

claiming  property,  sheriff  could  not  proceed l-i 

when  an  actor  or  plaintiff -        j^ 

who  may  be 

servant  not  usually  proper ^^4 

agreement  to  take,  will  not  sustain  replevin 137 

about  to  take  possession  not  sufficient ^     137 

must  be  one  in  possession  of  the  goods 134, 139,  145 

one  able  to  comply  with  mandate _  134 

making  way  with  or  concealing  goods  to  avoid  writ 135,  145 

liable  when  he  puts  it  out  of  officer's  power  to  serve  the  writ      146 

each  may  plead  separate  defenses 683 

each  may  file  several  pleas 6^3 

surrender  of  property  by  order  of  court  a  good  defense  ....       699 

damages  awarded  to 

damages  against ^ 

wrongfully  disposing  of  property 14b 

alias  writ  against - 

name  of,  must  appear  in  bond 411,  4,jy 


448  INDEX. 

BECTION. 

DEFENDANT  —  Continued. 

when  may  have  judgment  for  return 372,  493 

succeeding  not  always  entitled  to  return 485 

return  not  awarded  unless  asked 483 

insolvency  of  does  not  prevent  return 495 

avoidiug  trial  on  merits,  wlien  entitled  to  return 501 

when  may  give  bond  and  retain  the  possession 40,  o95 

pretending  he  has  the  goods,  estopped 375 

when  must  plead  jointl}"-  to  obtain  joint  return 683 

bound  to  know  sheriff 288 

goods  on  person  of,  cannot  be  taken 148 

must  receive  property  tendered,  even  if  damaged 423 

in  execution  cannot  replevy  goods  seized  on 248 

in  replevin  cannot  replevy  the  goods 258,  259 

when  entitled  to  demand 345 

grounds  of  demand  must  be  explained  to 377 

DEFINITION, 

of  distress 6 

of  replevin 31 

by  Britton 5 

by  Blackstone 10 

DELIVERY  OF  PROPERTY, 

mandate  for,  in  the  writ 463 

to  plaintiir  on  writ  of  replevin 293 

where  part  only  obtained  alias  writ  may  issue 466 

execution  of  bond  precedes 385,  463 

sheriff  cannot  deliver  without  bond 401 

precedes  liability  on  bond 425 

to  complete  a  sale 186,  191 

of  gift 193 

suit  may  proceed  without 396 

to  plaintiff  on  writ,  rights  conferred  by 469,  473  et  seq. 

does  not  confer  title 474,  476 

upon  the  writ  always  precedes  judgment  for  a  return 499 

after  trial,  judgment  for 509 

symbolic  when  sufficient  to  sustain  replevin 194 

DEMAND, 

object  of 344 

general  rules  governing 344 

necessary  where  defendant's  possession  is  rightful ., 345 

on  finder  of  property 359 

taker  up  ol  estrays 360 

purchaser  of  goods  payable  in  installments 361 

innkeeper  or  carrier 370 

innocent  holder 364 

■what  is  rightful  possession 305 

possession  taken  to  preserve  not  a  conversion 357 


INDEX.  449 

SECTION. 

DEMAND  —  Continued. 

purchaser  at  sheriff's  sale ........... 356 

reason  for  the  rule 346 

not  necessary  — 

where  defendant's  possession  is  wrongful 345 

acquired  througli  force  or  fraud 345 

proof  of  wrongful  taking  sufficient 348 

from  thief  or  trespasser 350 

where  the  goods  have  been  converted 351 

meaning  of  "conversion" 353 

fraudulent  purchaser 3G6 

when  from  officer 369 

when  defendant  refuses  to  listen 373 

when  he  has  parted  with  possession 371 

when  must  be  made 344  et  seq.,  371 

before  suit  is  begun 371 

after  suit .  373 

effect  of  failure  to  prove ...  373 

•waiver  of — 

claim  of  ownership  by  defendant 374 

plea  setting  up  ownership 373,  374 

when  admitted  in  pleadings  to ... 373 

upon  whom  must  be  made  — 

upon  one  who  can  deliver ..... 375 

upon  defendant's  wife  or  servant . 375 

upon  express  or  railroad  agent 379 

on  servant,  when  sufficient 381,  383 

by  whom  must  be  made  — 

by  father  or  guardian . 379 

by  agent 379,380 

refusal  to  deliver 346,349 

true  ground  must  be  stated 380 

to  agent  for  want  of  authority 380 

what  is  sufficient  excuse  for 381 

by  servant  of  master's  goods . 283 

refusal  to  listen  to 373 

effect  of 349 

offer  to  deliver  in  another  place 371 

should  be  made  on  all  several  defendants 375 

form  of 376 

grounds  for,  should  be  explained  when 377  et  seq. 

defendant  offering  to  deliver  at  another  place .. 371 

refusal  to  deliver,  the  true  ground  must  be  stated 380 

when  averment  of  in  declaration  necessary 681 

failure  to  prove,  effect  of .. ............  873 

DEPRECIATION, 

when  a  proper  element  of  damages 635 

29 


450  INDEX. 

BECTION. 

DEPUTY, 

sheriff  required  to  have 18,  note  1 

authority  to  serve  process 288 

act  of,  act  of  sheriff 294,  295 

defendant  must  know 288 

special,  must  show  authority 288 

when  must  talie  bond 394 

disputes  between,  sheriff  must  settle 296 

sherift  responsible  for  acts  of 295 

DESCRIPTION, 

of  goods 169 

when  goods  cannot  be  identified  replevin  does  not  lie.  .186  et  seq. 

general,  when  sufficient 179,  183 

synonymous  when  allowed,  illustrations  of 170 

strictness  of  required 169,  171,  185,  465 

"store  and  contents,"  when  sufficient 179 

quantity  described  as  '■'■  about  ^''  not  sufficient 181 

variance  in,  between  writ  and  declaration 182 

may  refer  to  kind  or  quantity 180 

writ,  affidavit  and  declaration  must  correspond 182 

objection  to  insufficiency  of,  when  must  be  taken 185 

omission  of  words  of 182 

of  goods  purchased  in  bulk,  selection  by  purchaser 190  et  seq. 

correctness  of,  when  a  question  for  the  jury  ... 175 

in  writ  and  in  return 184 

bond  must  contain _.      412 

affidavit  must  contain 665 

to  be  employed  when  goods  have  undergone  a  change 222 

DETENTION. 

wrongful,  necessary  to  sustain  replevin 52, 134 

charge  of,  sustained  by  proof  of  taking 54,  348 

distinction  between,  and  trespass .        53 

allegation  of.  the  gist  of  the  action 670 

DESTRUCTION  OF  PROPERTY, 

replevin  does  not  lie  after 135 

trespasser  cannot  set  up  as  a  defense 455,  600 

pending  suit,  at  whose  risk 471 

judgment  for  value 455,  787 

in  hands  of  sheriff 292 

effect  of  on  bond 455 

DETINET  AND  DETINUET, 

forms  explained .... . 53 

DILIGENCE. 

in  bringing  suit,  as  affecting  question  of  damages 553,  554 

in  rescinding  a  sale  for  fraud 331 

DISMISSAL, 

question  of  damages  in  such  case 517 


INDEX.  451 

SSCTION. 

DISMISSAL  —  Continued. 

nominal  damages  awarded . 518 

not  allowed  to  prevent  lieariug  as  to  damages 482,  516 

defendant  may  replevin  property  after  ...    474 

a  breach  of  condition  to  prosecute  with  efiect 417 

DISTRAINOR, 

lien  of,  lost  by  the  replevin  of  the  goods 469,  475 

DISTRESS, 

defined 6 

origin  of  the  right 716 

how  taken 7,  716 

■wrongful  when  security  was  offered 20 

originally  could  not  be  sold 8 

a  pledge  or  security  only 8 

allied  to  the  law  of  replevin 2 

usually  for  rent 7 

the  wrongful  detention  of  little  better  than  robbery 21 

at  the  risk  of  the  owner 8 

abuses  of  the  right  of,  and  the  remedies  for 9 

cannot  be  made  the  day  rent  is  due 724 

rights  of  landlord 721 

fixtures  not  liable  to 724 

landlord  cannot  distrain  twice  for  same  rent .  724 

articles  worn  on  the  person  not  liable 724 

right  of,  generally  in  force  in  this  country 718 

not  a  suit  at  law 719 

proceeding  in  case  of 719 

right  to  replevy 41,  473 

replevin,  ancient  remedy  for 715 

goods  delivered  to  tenant  to  be  worked  up  in  his  trade  for 

another  not  liable  to 724 

damages  in  case  of.. 585 

DURESS, 

goods  obtained  by  replevin  for 328,  367 

DWELLING  OF  DEFENDANT, 

does  not  protect  goods  of  another ......  287 


E. 
ENGLISH  STATUTES, 

the  basis  of  the  law  of  damages  in  this  country.. 386,  511 

EMANCIPATION  OF  SLAVES, 

aflfecting  the  question  of  damages .. 603 

ESSOIN, 

defendant  not  allowed .        21 

ESTRAYS, 

taker  up,  conforming  to  law,  has  a  lien  on  the  property...  124,  360 


452  INDEX. 

„         „  SECTION. 

ESTRAYS  —  Continued. 

must  comply  strictly  with  law 126 

taker  up,  when  entitled  to  maintain  replevin 678 

taker  up  complying  with  the  law  entitled  to  demand  and 

tender 860 

taken  up  when  a  trespasser 360 

ESTOPPEL, 

party  estopped  by  sale  with  his  consent 150 

defendant  pretending  he  has  the  goods 375 

EVIDENCE, 

scope  of,  admissible  in  replevin 55 

what  sufficient  to  sustain  claim  of  ownership 96  et  scq. 

meaning  of  the  term  "  owner" 656 

meaning  of  the  term  "property  in  plaintiff" 96  et  seq. 

of  actual  detention  necessary 52 

that  defendant  was  about  to  take  possession  not  sufficient..       137 

proof  of  wrongful  taking,  wheu  sufficient  ._ 54 

proof  of  forcible  taking  not  necessary 95 

prior  rightful  possession,  when  sufficient 109,  113 

plaintiff  must  show  a  right  to  immediate  and  exclusive  pos- 
session   94 

title  to  laud,  when  in  replevin 79 

as  to  what  is  or  is  not  realty 64  et  seq. 

of  colorable  title  to  land,  when  defense  in  replevin 81 

mortgage  how  far  evidence  of  title  to  chattels  severed  from 

real  estate 90  e<  seq. 

chattel  mortgage,  how  far  evidence  of  title 123 

of  legal  title  will  prevail  over  equitable 105 

affidavit  must  be  framed  to  meet 653 

of  value  at  a  distant  market  to  ascertain  true  value 563 

to  sustain  vindictive  damages 622 

special  deputy  must  show  his  authority 288 

what  a  demand  and  refusal  is  evidence  of 349 

proof  of  demand  and  refusal,  when  necessary 344  et  seq. 

of  value  of  use,  when  evidence  of  damage 5!:'3 

judgment  in  replevin  not  necessarily  evidence  of  ownership      102 

as  to  the  identity  of  the  property 168,  171 

jury  to  determine  identity  from 175 

as  to  description  must  correspond  with  writ  and  declaration      182 

of  title  must  not  be  stated  in  pleading 676 

of  a  selection  of  property  by  a  purchaser 190 

of  the  value  of  goods,  for  fixing  amount  of  bond 40:) 

affidavit  when,  of  value 569,  659 

of  value  and  damages  must  be  separate 610 

contract  for  purchase  not,  of  title 129 

carrier  cannot  prove  title  in  a  third  person 104 

what  is  sufficient  to  show  the  goods  were  seized  for  a  tax..      336 


INDEX.  453 

BEcnoN. 
EXECUTION  OR  ATTACHMENT, 

goods  seized  on,  defendant  cannot  replevy 248 

distinction  between,  and  writ  of  replevin 257,  281 

officer  must  take  the  goods  of  the  defendant  named  at  his 

peril 2G0 

levy  of,  confers  a  special  property  on  officer 130,  300 

lien  of,  continuing 47G 

property  fallen  on  and  replevied,  and  again  taken  on  another 

execution,  is  a  return 476 

■will  protect  officer  when  sued  in  trespass 263 

effect  of  a  replevy  of  goods  seized 299,  472 

goods  wronfffully  seized  on - 245 

owner  may  retake,  when -- 246 

levied  on  goods  of  a  stranger  by  his  procurement 208 

goods  wrongfully  taken  on,  what  court  has  jurisdiction 273 

on  interest  of  mortgageor  of  chattels 222  b 

directs  the  seizure  of  defendant's  goods 260  et  seq. 

goods  taken  on,  when  not  repleviable 243,  245 

against  one  of  a  firm,  officer  may  seize  partnership  goods. 166  et  seq. 

sale  on  wrongful,  does  not  divest  title 133 

transfers  no  title,  except  what  defendant  had 303 

conveys  all  the  title  the  defendant  had 300 

damages  to  parly  holding  under 586 

EXCEPTIONS, 

to  bond  waived  by  plea  to  merits 410 

to  securities  on  bond. -. 410 

to  defects  in  affidavit 657 

EXECUTORS  AND  ADMINISTRATORS, 

may  bring  replevin - 636 

not  officially  guilty  of  tort - 637 

EXEMPT  PROPERTY, 

replevin  lies  for  when  seized 268 

EXEMPTION, 

a  personal  privilege 270 

aid  of  statute  must  be  invoked 209 

■waiver  of,  by  one  creditor  cannot  be  taken  advantage  of  by 

another 269 

damages  for  seizing 271 

EXPENSES, 

of  suit  not  allowed  as  damages 576  et  seq. 

of  taking  and  moving  property  allowed  as  cost,  not  damages      578 
EXPRESS  AGENT, 

demand  upon,  sufficient 379 

EXPRESS  COMPANY, 

asrent  of,  proper  defendant 144 


454:  INDEX. 

P. 

BECTION. 

FAMILY  PICTURES, 

damages  in  case  of  taking 568 

FATHER, 

may  sustain  replevin  for  property  of  minor  child 643 

demand  by,  when  sufficient 379 

FENCE, 

on  land  of  another 76 

FINDER, 

of  note  has  no  right  to  collect  it - -  119 

of  goods  entitled  to  demand - 359 

■when  he  can  sustain  replevin 115  et  seq. 

cannot  claim  lien  for  expenses —  118 

or  for  services  gratuitously  bestowed 359 

setting  up  a  lien  not  entitled  to  demand. 359 

has  lien  for  reward  offered 118 

FINE, 

goods  seized  for  fine  not  repleviable 241 

FIRM, 

when  responsible  for  taking  by  one  member 141 

FORCIBLE  TAKING, 

of  one's  own  goods,  replevin  does  not  lie  for 51 

proof  of  not  necessary  to  sustain  replevin 95 

always  wrongful 367 

FORCE  OR  FRAUD, 

goods  acquired  by,  demand  not  necessary 345 

FRAUDULENT  TAKER, 

acquires  no  title. 310 

no  demand  necessary 366,  3G7 

goods  obtained  by,  replevin  for 328 

FRAUDULENT  PURCHASE, 

what  is 320  et  seq. 

must  be  some  positive  fraudulent  representations 330 

innocent  vendor  may  rescind  or  may  affirm 318,  366 

distinction  between,  and  theft 334 

FRAUDULENT  PURCHASER, 

takes  voidable  title 318 

takes  a  title  good  until  avoided 334,366 

cannot  avoid  the  sale — 318 

replevin  against,  by  vendor -  319 

diligence  required  of  one  to  rescind 331 

vendor  can  replevy  from  attaching  creditors  of. 324 

vendor  can  replevy  from  assignee  of 325 

transferor  goods  obtained  by,  to  pay  creditors 147 

FRAUDULENT  REPRESENTATIONS, 

as  to  credit,  replevin  lies 306 


INDEX.  455 

BECTIOK. 

FRAUDULENT  REPRESENTATIONS  —  C(jn<t/iMe«?. 

as  to  solvency,  avoids  sale 321 

FRAUDULENT  SALE, 

to  avoid  writ 145 

FRAUDULENT  MIXTURE  OF  GOODS, 

all  belong  to  innocent  party 197  et  seq. 

FREEMAN  v.  HOWE, 

rule  in,  discussed . 273  et  seq. 

G. 
GENERAL  DESCRIPTION, 

what  is  a  sufficient . -.-      179 

GENERAL  DENIAL, 

evidence  under  plea  of --      301 

GENERAL  ISSUE, 

strictly  speaking,  none  in  replevin -      700 

GIFT, 

not  sufficient  to  sustain  replevin  without  delivery 192 

GOOD  FAITH  OF  AN  OFFICER, 

no  protection  against  illegal  acts . 276  et  seq 

when  no  defenses. 364,  365 

GOOD  ORDER,  ^ 

goods  returned  must  be  in  as,  as  when  taken .  _.. »«      422 

GOODS, 

lost  at  sea,  lien  of  salvors 127 

sold  on  condition,  execution  against .      343 

wrongfully  seized  on  execution,  owner  may  replevin ._      245 

when  returned  must  be  in  as  good  order  as  when  taken 423 

purchased  from  bulk,  replevin  does  not  lie  for  unless  sepa- 
rated or  distinguished 186  et  seq. 

injured  in  defendant's  possession  he  is  responsible 423 

GRAIN, 

mixed  with  similar  grain  belonging  to  another.... 203  et  seq. 

GROWING  CROPS, 

replevin  for 74,  143 

harvested  after  ejectment 85  et  seq. 

GUARDIAN, 

may  sue  for  property  of  his  ward . 643 

demand  by,  when  sufficient .... . 379 

liability  of  on  bond  personal .... .. 438 

H. 

HOTEL  KEEPER.    See  Inn  Keeper. 

HOUSE, 

when  replevin  lies  for .. .. . -        68 

mortgagee  may  recover . . ...............        90 


456  IKDEX. 

BECTIOIT. 

HIRER, 

for  a  special  purpose,  cannot  use  it  for  another 363 

when  his  interest  may  be  sold  on  execution .-        98 

See  Bailee. 


I. 

IDENTIFICATION, 

of  the  goods  sued  for,  strictness  of  the  rule 171  et  seg. 

replevin  does  not  lie  unless  goods  can  be  identified 186  et  seq. 

IDENTICAL  GOODS, 

ir  ist  be  returned 421 

■writ  of  return  must  show 510 

after  a  change  of  form 213  et  seq. 

INDEMNITY, 

oflBcer  may  demand 29Z  et  seq. 

INFANT, 

avoiding  payment,  replevin  lies  for  ■  o^ds . 327 

INJURY, 

to  goods  while  in  defendant's  possession,  who  responsible..      423 

INJURIES, 

to  property  pending  suit,  effect  of 471 

INN  KEEPER, 

has  a  lien  on  goods  of  guests 124 

as  to  lien  of,  on  horse  stolen  cind  left  with 315 

INNOCENT  PURCHASER, 

replevin  against - . ....      366 

ignorance  does  not  excuse 364 

of  stolen  goods  cannot  resist  the  owner 307,  364 

from  plaintifl"  in  replevin  pending  suit 476 

of  goods  taken  by  trespass 309 

from  fraudulent  taker,  cannot  resist  the  owner 310 

distinction  between,  and  one  who  takes  goods  in  payment 

for  debt 338 

from  fraudulent  purchaser,  replevin  does  not  lie  against.  .318,  333 

of  goods  bought  with  counterfeit  money 323 

pledgee,  or  mortgagee,  not  so  regarded 338 

of  mortgaged  goods,  mortgagee  may  replevin 312 

from  bailee  without  authority. 312  et  seq. 

from  one  who  took  goods  of  principal  from  an  agent  for 

debt 314 

from  thief,  may  affirm  the  contract  against  the  thief 311 

of  goods  sold  on  condition,  replevin  lies  for 341 

who  changes  form  of  chattels  may  hold 216 

from  wrongful  taker,  demand,  when  necessary 347 

of  stolen  goods,  not  entitled  to  demand . .      347 

•when  liable  for  value 311 


INDEX.  457 

BBCTION. 

INTEREST, 

j  udgmcnt  draws -  538 

as  a  measure  of  damages 537 

•when  only  part  of  tlie  goods  are  obtained 539 

from  what  time  computed 538 

on  value  from  time  of  conversion,  under  English  statutes. 547  et  seq. 

not  allowed  with  value  of  use 583 

and  not  value  of  use,  when  allowed 583 

when  the  contest  is  on  the  validity  of  sale -  541 

where  the  defendant  is  a  stakeholder 542 

when  plaintiff  fails  to  furnish  bond -  538 

allowed  in  an  action  on  bond —  540 

INSECURITY  CLAUSE, 

in  chattel  mortgage,  effect  of 232  6 

INSOLVENT  PURCHxVSER, 

may  return  goods  to  vendor 330 

INSOLVENCY, 

of  securities,  court  may  order  new 409 

fraudulent  representation  as  to  solvency  avoids  sale 321 

will  not  avoid  purchase  made  in  good  faith 330 

believing  himself  solvent 830 

omission  to  disclose  will  not  avoid  a  sale 330 

INSOLVENT  LAWS, 

contesting  creditors  cannot  claim  under 783 

INTOXICATING  LIQUORS, 

seized,  not  repleviable -..  253 

contra,  when  ordinance  is  void 253 

sold  to  violate  law,  replevin  does  not  lie  for 326 


J. 

JEWELS, 

replevin  lies  for,  if  identified 177 

JOINT  OWNERS, 

must  join  in  a  suit  for  joint  property 155,  635  et  seq. 

owners  of  different  interests  cannot  join _ 635 

must  join  in  avowry 725 

JOINT  TENANCY, 

appearing  in  the  writ,  the  court  will  abate  it 153 

pleaded  in  abatement  or  in  bar _ IGO 

as  a  matter  of  defense -  153 

an  issue  to  be  tried 153 

owners  of  different  interests  cannot  join  in  replevin 635 

of  grain,  when  replevin  by  lies 203  et  seq. 

one  may  have  exclusive  right  to  possession 161 

one  cannot  sustain  replevin  against  another —  153 

or  against  a  stranger 156 


458  INDEX. 

BECTIOir. 

JOINT  TENANCY  —  Continued. 

one  may  recover  oa  fomner  possession 150 

severance  of 102  et  seq. 

must  have  joint  judgments 635 

damages  as  between 598 

damages,  how  awarded  to  one 459,  598,  599 

return  adj  udged  when  parties  are 506 

payment  of  rent  to  one  of  two 733 

JUDGMENT, 

in  replevin 34 

by  default .• 770 

must  be  certain 768,  769 

whSit  it  must  determine 766 

must  determine  all  issues  as  to  all  parties 767 

form  of,  in  several  States 774 

may  be  good  as  to  some,  bad  as  to  other  defendants 767 

may  be  for  separate  parties 775 

or  separate  articles.. 776 

for  different  parts  of  property,  for  each  party 667 

effect  of  in  particular  cases ^ 783 

for  value  when  rendered 543 

effect  of,  for  value 779 

when  it  does  not  affect  title 781 

for  dismissal  does  not  affect  title _      782 

for  sum  demanded,  error  unless  found 741 

for  value  of  limited  interest 784 

only  rendered  where  return  would  be  proper 491 

in  alternative  for  goods  or  value 772,  773 

exceptions  to  this  rule 774 

defendant  entitled  to  alternative,  for  return  or  value 543  et  seq. 

as  in  favor  of  joint  owners  must  be  found 635 

for  damages  cannot  be  rendered  unless  found 529 

wliere  property  is  lost  or  destroyed 604,  786 

cannot  be  for  value  when  party  has  property 543,  771 

where  plaintiff  does  not  ask  delivery 151 

on  a  count  in  trover 785 

where  goods  are  delivered  without  bond 387 

order  for  delivery  in 777 

for  delivery  after  trial 509 

for  return  — 

no  arbitrary  rule  governing 503 

only  rendered  after  investigation 485 

when  should  be  rendered 508 

never  given  unless  the  plaintiff  obtained  the  prop. 

erty  on  the  writ 499 

controlled  by  rights  of  parties  when  rendered 496,  497 

not  a  bar  to  another  action  of  replevin 494 


INDEX.  459 

SECTION, 

JUDGMENT  —  Continued. 

For  return  —  Continued. 

does  not  affect  title --  T83 

when  not  evidence  of  title 494 

defendant  lias  no  option  to  pay  value 423 

may  be  to  one  of  several  defendants -  486 

defendant  entitled  to  reasonable  time  to  comply 

with T78 

may  be  for  part  of  the  property 486 

may  be  for  part  of  property  to  one  defendant  and 

part  to  another 486 

where  property  is  lost  or  destroyed —  506 

of  property  not  delivered  erroneous --  499 

not  rendered  unless  defendant  show  a  right  to 487 

not  rendered  unless  the  goods  were  delivered 499 

when  parties  are  joint  tenants 506 

not  necessary  to  constitute  a  breach  of  other  condi- 
tions    415 

is  a  breach  of  the  condition  to  return 423 

for  young  of  animals  born  pending  suit 500 

on  bond,  form  of — 457 

in  suit  on  bond  for  penalty 457 

how  satisfied 457 

not  rendered  in  proceeding  of  distress -  719 

JUSTIFICATION, 

plea  of  by  officer  must  show,  the  command  of  his  writ 301 

JURISDICTION, 

what  court  has,  for  property  levied  on 273 

as  to  property  in  the  county  when  writ  issued 467 

not  affected  by  want  of  bond - 393 


L. 

LAND, 

title  to,  when  evidence  in  replevin —79  et  seq. 

LANDLORD, 

cannot  sustain  replevin  for  undivided  share  of  crop 157 

lien  of,  gone  by  replevin  of  the  goods  detained >      473 

measure  of  damages  awarded  to 459 

cannot  distrain  twice  for  same  rent 724 

LARCENY.    See  Theft. 

LEGAL  TITLE, 

will  prevail  over  equitable . — -      105 

LENDER, 

when  he  must  demand  goods -      358 

LEVY, 

by  an  officer  confers  right  to  possession 130 


4^0  INDEX. 

SECTION. 

l.'EWY— Continued. 

confers  special  property —  300 

replevin  lies  where  it  is  wrongful 251 

when  not  a  conversion 353 

in  bulky  articles 143 

on  goods  of  a  third  person  by  his  procurement 203 

does  not  confer  possession  on  creditor  — 143 

of  tax  warrant,  irregular  cannot  be  contested  in  replevin.225  et  seq. 
LIBERTY, 

what  is  a IT 

sheriff  could  not  enter 14 

sheriff  authorized  to  enter  witliout  writ 17 

non  omlttas,  authorized  the  sherifi  to  enter 14 

LIABILITY, 

on  bond,  delivery  on  writ  must  precede 425 

LIEN, 

of  execution,  a  continuing  lien 42G 

of  distrainor,  lost  by  replevin  of  the  goods 475 

of  the  taker  up  of  an  estray 124,  120 

finder  has  no,  for  expenses  voluntarily  incurred 118 

of  ofHcer  on  goods  levied  on 130 

of  innkeeper - 124 

carrier  or  innkeeper  cannot  assert  against  owner  of  stolen 

goods 370 

holder  of,  entitled  to  possession  may  sustain  replevin 122,  125 

finder  of  lost  property  has,  for  reward 118 

defendant  claiming,  must  specifically  assert 381 

of  landlord,  efi'ect  of  replevin  upon 739 

lost  by  replevin  of  the  goods 473 

of  factor  on  goods 124 

damages  when  successful  party  had  only —  584 

of  salvors 127 

LIMITED  INTEREST, 

verdict  in  such  cases 763 

judgment  for  amount  of 784 

value  of,  as  damages  allowed 459,  584 

LIMITATIONS, 

form  of  plea 798 

to  suit  on  bond 461 

when  statute  commences  to  run 798 

against  officer --  798 

LIQUORS, 

sold  to  violate  law  returned  to  sheriff 505 

LOST  BOND, 

how  supplied —  445 


INDEX.  461 

M. 

SECTION. 

MALICE, 

as  affecting  the  question  of  damages 623 

illustration  of  the  rule 624 

officer  acting  with,  how  liable 593,  628 

of  party  does  not  affect  officer . 593 

actual  must  be  shown 623 

MARKS  AND  BRANDS, 

sufficient  to  distinguish  goods  sold 195 

changing,  to  produce  confusion,  innocent  party  takes  all 203 

MARKET  OVERT, 

sale  of  goods  in 306 

unknown  in  this  country -..       307 

MARKET  VALUE. 

how  ascertained 555,  556 

value  at  a  distant  market,  when  may  be  shown 563  et  seq. 

MASTER, 

maj^  sustain  replevin  for  goods  taken  from  his  servant 644 

may  instruct  servant  not  to  deliver  except  on  his  order 383 

demand  on  servant  for  goods  of,  not  sufficient 383 

MEASURE  OF  DAMAGES, 

rules  for  estimating 525,  546 

nominal  when  allowed 526 

compensation  the  object ..      530 

except  where  malice  is  shown 533 

how  compensation  is  ascertained 531 

when  property  is  stable  in  value 548 

when  value  is  fluctuating 533,  548 

in  a  stock  speculation _ 556 

"market  value,"  how  ascertained 555,  556 

in  case  of  wrongful  detention 546 

highest  value   between   conversion   and    judgment,  when 

allowed 649 

party  claiming  must  show  extent  of  loss 528 

lime  from  which  damages  are  estimated  when  taking  was 

wrongful 534 

same,  when  taking  was  rightful 534 

as  between  joint  owners 459,  598 

between  general  owner  and  a  trespasser 587 

as  between  officer  and  stranger 593 

pretitum  affectioniSy  when  allowed  to  enter  into  damages 568 

between  bailee  and  general  owner 587 

when  goods  are  sold  by  broker  without  orders 549  et  seq. 

price  at  which  goods  sold,  when  allowed  to  govern 568 

price  at  which  goods  wei'e  sold  is  not 567 

between  general  owner  and  a  stranger 587 

when  the  party  had  only  a  limited  interest  in  the  property .459,  584 


462  IKDEX. 

BECTION. 

MEASURE  OF  DAMA.GI1S  —  Continued. 

where  title  has  terminated  before  judgment 589 

rule  in  Suydam  v.  Jenkins 568 

in  a  suit  for  note  or  bill 557  et  seq. 

interest  not  allowed  with  value  of  use 583 

interest  as  a  measure  of  damages 537 

from  what  time  assessed 538 

when  one  deprives  the  other  of  power  of  showing  real 

quality,  best  quality  presumed 556 

against  sheriff  for  wrongful  seizure 590 

as  between  officer  and  general  owner 593 

against  officer  acting  in  good  faith 591 

for  neglect  of  duty 596 

acting  with  malice 592 

as  between  ofiicers 597 

diminution  in  value  a  proper  element 535 

loss  of  business,  how  far 578 

expenses  of  suit,  counsel  fees 576,  577 

loss  of  profits  of  an  illegal,  never  allowed 573 

conduct  of  suit  as  afiecting. 553,  554 

when  party  acts  in  defiance  of  right 627 

when  malice  is  shown 623 

value  of  property  when  not  allowed 543  et  seq. 

value  of  use  when  allowed 579 

value  of  use  when  not  allowed 583 

for  coal  dug,  or  timber  cut 614 

special  damages  must  be  specially  alleged 571 

when  defendant  has  wrought  a  change  in  the  goods 567  et  seq. 

value  stated  in  affidavit  how  far  binding 569 

where  goods  have  been  removed,  cost  of  transportation. 562  et  seq. 

coin,  when  a 560 

in  suit  on  bond .      457 

in  suit  on  bond,  interest  on  value 540 

MERCHANDISE  KEPT  FOR  SALE, 

disposal  of,  pending  suit - 480 

MINOR, 

cannot  sustain  replevin . - 643,  647 

MIXTURE.    See  Confusion. 

MONEY, 

when  replevin  lies  for 59, 177 

deposit  of  cannot  be  accepted  in  lieu  of  bond 408 

MORTGAGEOR, 

rights  of  to  chattels  mortgaged 222& 

has  an  interest  which  may  be  sold - 222 

sale  of  chattels  by,  will  not  defeat  mortgagee 223,  313 

MORTGAGE, 

on  real  estate  how  far  title  to  chattels,  severed  therefrom .90  et  seq. 


INDEX.  463 

N. 

SECTION. 

NEGLECT, 

when  not  a  conversion 138,  139,  352 

NEGLIGENCE  IN  PROSECUTING  SUIT, 

as  affecting  question  of  damages 553,  554 

NOMINAL  DAMAGES, 

only  allowed  unless  proof  of  actual  damage 528 

awarded  without  proof  of  actual  injury 52G 

NON   CEPIT, 

when  proper  plea 700 

form  of  plea  of 705 

effect  of  this  plea 704 

defendant  not  entitled  to  return  on 487,  704 

exceptions  to  this  rule 488 

defendant  not  entitled  to  damages  on 704 

admits  every  fact  except  taking 704 

NON  CEPIT  AND   NON  DETINET, 

statutory  effect  given  to  thctd  pleas  substantially  same  as 

general  issue 438,  700 

NON  DETINET, 

when  proper  in  replevin -      700 

general  rules  governing 713 

defendant  not  entitled  to  return  on 487 

exceptions  to  this  rule 488 

admits  plaintiff  right 713 

whether  plea  of  tender  proper  issue  to  charge  of  taking 709 

effect  of,  similar  to  noii  cepit,  only  denies  the  detention 708 

NON-PAYMENT, 

does  not  warrant  rescission  of  sale 840 

NOTE  OR  BILL. 

damages  in  a  suit  for 557  et  seq. 

finder  of  has  not  right  to  collect 119 

NOT  GUILTY, 

verdict  of,  what  responsive  to 746,  747 

NON-SUIT, 

effect  of 26 

judgment  for,  do     not  affect  title 781 

••NULLA  BONA," 

return  of,  as  to  securities  not  conclusive . ...      387 


O. 

OBJECTIONS  TO  BOND, 

waived  by  plea  to  merits 410 

OFFICER, 

duty  on  receiving  a  writ  of  replevin 293 


46  i  LNDEX. 

SECTION. 

OFFICER  — Cojitiiiued. 

power,  and  of  serving  a  writ 282 

lie  must  see  that  his  writ  is  in  form 284 

that  the  description  is  sufficient 285 

that  the  court  had  jurisdiction  to  issue  such  a  writ.  285 

that  the  writ  is  valid  on  its  face 298 

he  must  take  bond 289,  290 

serve  promptlj'- 293 

search  for  the  goods 2!)2 

employ  force  if  necessary 285 

deliver  the  goods  to  plaintiff 292 

penalty  for  failure  to  discharge  liis  duty 596 

may  refuse  to  serve  when  description  is  uncertain 181,  182 

neglect  of,  suit  not  dismissed  for 714 

seizing  goods  without  authority  a  trespasser 276 

when  may  break  and  enter  dwelling 287 

must  execute  process  in  a  legal  manner 284 

serving  writ  of  replevin  cannot  sever  real  estate 293 

liability  of,  for  refusing  to  take  chattels,  under  pretense  that 

they  are  real  estate 293 

defendant  bound  to  know 288 

may  demand  indemnity,  when 293  et  seq. 

cannot  take  clothing  worn  on  the  person 148 

how  far  protected  in  serving  writ  of  replevin 264 

cannot  take  goods  from   possession  of  a  stranger  to  his 

writ 265  et  seq. 

good  faith  of,  no  protection  against  illegal  acts 276  et  seq. 

taking  by,  what  is  sufficient 142 

special  property  of,  acquired  by  levy  of  process 130,  300,  644 

levy  on  bulky  articles 143 

levying  on  goods  of  wrong  person,  latter  cannot  replevy  if 

by  his  procurement 208 

wrongfully  seizing  goods,  replevin  lies  against 245 

wrongful  levy  by,  owner  may  retake  his  goods  peaceably..  246 

seizing  goods  for  tax  cannot  go  outside  his  bailiwick  ...239  et  seq. 

not  an  insurer  of  goods 292 

liable  for  ordinary  care 2!l2 

liable  for  value  of  goods  left  with  debtor 292 

defense  by,  to  suit  of  replevin 302 

plea  of  justification,  must  show  his  process 301 

must  show  a  valid  judgment  in  addition  to  execu- 
tion   130 

must  ask  a  return 302 

defending  in  attachment,  must  show  a  debt  due 303 

with  writ  of  retorno  cannot  take  goods  from  person  not 

named 267 

mixing  goods  loses  his  lien 199 


INDEX.  465 

SECTION. 

OFFICER  —  Continued. 

with  writ  of  replevin  not  liable  for  taking  the  goods  from 

the  defendant  named 264  et  seq. 

seizes  goods  from  defendant  named  in  his  process,  demand 

necessary 3G8 

when  eulilled  to  demand 3G8 

sale  by,  on  execution  transfers  no  better  title  than  defendant 

had 303 

wrongful  seizure  and  sale  by,  does  not  affect  owner's  rights.       133 

return  of  process 297 

must  state  his  acts 297 

the  property  talien 297 

how  far  conclusive 297 

act  of  deputy  is  act  of  the  superior 294,  295 

must  settle  disputes  of  his  deputies 296 

liable  for  act  of  deputy 294,  295 

damages  against,  for  seizing  exempt  property. 271 

measure  of  damages  between 597 

receiptor  to,  rights  of 131 

whether  permitted  to  sustain  replevin 645 

attaching  creditor  not  jointly  liable  with 646 

acting  with  malice,  damages  against 593,  628 

removal  or  resignation  does  not  relieve  him  of  responsibility      294 

liability  of,  personal 294 

limitations  against 798 

extent  of  his  liabilit}'-  in  taking  security 290 

liable  in  case  of  failure  to  take  bond .. 290 

liability  for  solvency  of  securities 289  et  seq. 

liable  for  taking  bond  in  less  than  double  the  value  of  the 

goods 290 

may  take  goods  to  appraise  without  bond 391 

neglect  to  take  bond  not  a  contempt 393 

cannot  deliver  goods  without  bond _ 387 

liable  as  a  trespasser  for  delivering  goods  without  bond  ..390,  391 

or  on  insufficient  bond 391 

with  execution,  must  act  at  his  peril 276,  593 

execution,  when  no  protection  to 283 

ORIGIN, 

of  replevin  unknown 1 

OWNERSHIP, 

absolute,  not  necessary  to  sustain 96 

change  in,  pending  suit,  eftect  of 496,  497 

bailee  claiming,  forfeits  his  right  to  demand 373 

question  of,  not  aftcctcd  by  delivery  on  writ 474,  476 

determined  by  result  of  suit,  not  by  delivery  on  writ  of 

replevin 470 

question  of,  not  settled  by  judgment  for  return 494 

30 


466  INDEX. 

SECTION. 

OWl^ERSniP— Continued. 

•when  settled  in  replevin  suit  cannot  be  questioned  in  suit 

on  bond 447,  448 

OWNER, 

meaning  of  the  term  in  this  action 656 

usually  entitled  to  possession 39, 133 

of  goods  fraudulently  purchased  cannot  replevy  from  an 

innocent  purchaser 334  et  seq. 

taking  with  consent  of,  not  a  conversion 140 

of  real  estate  cannot  recover  chattels  severed  by  holder  of 

adverse  title  in  possession 82  et  seq. 

when  may  recover  chattels  severed 81 

receipting  to  an  officer  cannot  deny  officer's  right 103 

may  be  estopped  to  assert  title 329 

taking  forcible  possession  of  his  own  goods,  replevin  does 

not  lie 51 


P. 
PARTIES, 

who  may  be 634 

owners  of  separate  interests  cannot  join 635 

joint  tenants  must  join 635 

agent,  when  may  be 635 

of  express  or  railroad  company 144 

trustees,  executors,  etc 636 

parish  or  corporation 638 

assignee  of  goods  in  adverse  possession  of  another 639 

father  or  guardian  may  be 643 

servant  not  a  proper  party 644 

officer  may  replevy  goods  seized  on  process 300,  644 

levying  on  bulky  goods,  may  be  sued 139,  143 

receiptor  to  officer 645 

attaching  creditor,  when . 646 

minor  cannot  be 647 

plaintiff  must  be  one  who  has  a  right  to  immediate  and 

exclusive  possession 94 

defendant  must  be  one  who  has  possession 134 

right  of  at  time  suit  begun  will  control 496 

each  has  a  right  to  submit  proper  issues 745 

right  to  return  determined  by  right  at  the  time  of  judg- 
ment  496,497 

death  of,  effect  on  suit 418,  801 

sheriff  may  sue  bond 463 

assignee  of  sheriff  may  sue  bond - 385,  387 

PARTNER, 

one  cannot  maintain  replevin  against  another  for  firm  goods      153 


INDEX.  467 

8ECTI0N. 

PAliTNER—  Continued. 

sale  of  one  partner's  interest 1G5 

survivor  or  administrator  entitled  to  possession  may  sustain 

replevin 159 

■when  responsible  for  taking  by  one  member 141 

one  cannot  bind  firm  on  a  replevin  bond . . 409 

accounts  cannot  be  settled  in  replevin 166  et  seq. 

interest  of  one  may  be  seized  on  execution 166 

PAUPER, 

taking  oath  of,  does  not  excuse  giving  bond 389 

PENALTY  IN  BOND, 

mode  of  ascertaining ..      400 

judgment  for,  how  discharged 457 

not  the  measure  of  the  parties'  right  of  recovery ...      457 

PERISHABLE  PROPERTY, 

disposition  of,  pending  suit 480 

rule  concerning 471 

PERSONAL  ACTION, 

how  far  replevin  is  a 34 

PERSONAL  PROPERTY, 

what  is,  tried  in  replevin 64 

PERSON  OF  DEFENDANT, 

goods  on,  cannot  be  taken 148,  286 

PLAINT, 

affidavit  of,  modern  practice 654 

PLAINTIFF, 

who  may  be,  in  replevin 634 

must  have  an  entire  interest 154 

owners  of  separate  interests  cannot  join 155 

entitled  to  possession  pending  suit 37,  470 

duty  of,  concerning  the  property  pending  suit 480 

must  show  right  to  present  and  exclusive  possession. 94,  97, 107,  108 

ownership  in  the  identical  goods  sued  for. 168 

duty  of  as  to  keeping  the  property  until  suit  is  decided .       480 

rights  of,  to  property  pending  suit 470,476 

when,  may  sell  property  pending  suit 469,  470,  472 

rights  acquired  by,  under  the  writ 469 

injuries  to  goods  pending  suit  at  his  risk 470,  471 

need  not  show  title  by  absolute  ownership 96  et  seq. 

"property  in,"  meaning  of  the  term 96 

need  not  show  title  against  the  world 97  et  seq. 

asserting  title  must  show  good  title 120 

a  right  to  possession  as  against  defendant 97  et  seq. 

not  required  to  return  unless  he  had  delivery 499 

not  liable  to  return  unless  so  ordered  by  the  court 483 

may  return  property  without  order  and  save  damages .      483 

damages  allowed  to 531 


468  mDEX. 

BECTION. 

PLAINTIFF  —  Continued. 

must  give  security 27,  400 

PLEADINGS, 

established  rules  must  govern. 648,  G49 

statutory  rules 703 

declaration  must  state  value  of  property 680 

issues  formally  admitted  cannot  be  denied 702 

description  of  property  should  follow  affidavit 665 

declaration  may  contain  several  counts 666 

count  in  trover,  when  permitted 668 

averment  of  demand,  when  necessary 68 1 

special  damages  must  be  specially  pleaded 571 

disclaimer  of  interest  in  property  no  defense 711 

by  sheriflF 687 

■whether  non  detinet  is  proper  to  charge  of  taking 708 

joinder  of  pleas  allowed 706 

several  pleas  allowed,  Stat.  Anne 706 

matters  in  issue  not  admitted  by  subsequent  pleadings 701 

proof  of  one  of  several  defenses  sufficient 684 

traverse  denies  plaintifTs  right 696 

traverse  the  material  part  of  the  plea .  689 

without  traverse,  burden  of  proof  on  defendant 697 

to  affidavit 657 

affidavit  not  a  part  of  the  record 650 

avowry  and  cognizance  substance  of  these  pleas 728 

statutory  forms  sufficient 679 

justification  alone  burden  of  proof 712 

statutory  effect  given  to  now  detinet 713 

cepit  in  alio  loco 707 

non  cepit,  or  non  detinet 700 

effect  of  no7i  cepit 704 

non  detinet,  rules  governing 713 

PLEAS  IN  ABATEMENT, 

of  joint  tenancy 160 

prior  replevin,  necessary  allegations  in .796,  797 

PLEAS, 

joinder  of - 684 

separate,  need  not  be  consistent  with  each  other 684 

to  merits,  waiver  of  objection  to  bond 410 

description 185 

of  property  in  defendant,  how  construed 686 

not  sufficient  against  right  of  possession 688 

necessary  to  obtain  return 491 

what  will  sustain  this  plea 686 

must  traverse  plaintiff 's  right . 686 

to  obtain  order  of  return 491 

of  non  cepit,  simply  denies  taking -  689 


INDEX.  4G9 

BECTION. 

PLEAS  —  Continued. 

Of  non  cepit  —  Continued. 

admits  the  property  in  the  defendant G86 

return  not  ordered  upon 487 

damages  not  allowed  to  defendant  on 523 

exceptions  to  this  rule 524 

non  detinet,  return  not  ordered  on 487 

of  title,  must  show  where  suit  began 685 

of  justification  by  an  officer 301 

must  sliow  process 687 

of  property  in  third  person. 689 

does  not  admit  the  talking 690 

third  person  must  be  named 690 

not  sufficient,  wliere  plaintiff  claims  only  right  of 

possession 694 

not  binding  on  said  third  person  unless  a  party 691 

form  of  this  plea 690 

right  of  defendant  to  return  under 692 

defendant  must  connect  himself  with  that  third 

person 695 

what  sufficient  to  sustain  this  plea 492 

burden  of  proof 690 

when  defendant  may  have  return  on 492 

trespasser  cannot  have  return  under 492,  693 

defendant  cannot  show  property  in  another 690 

what  sufficient  to  authorize  return  under 693 

without  traverse,  burden  of  proof  on  defendant 690 

evidence  to  sustain  must  be  sufficient  to  destroy 

plaintiff's  interest 694 

with  traverse 689 

proper  replication  to 1 690 

to  avowry,  or  cognizance,  like  plea  to  declaration 733 

what  it  must  show 735 

to  suit  on  bond,  that  defendant  converted  the  property,  is  bad  449 
PLEDGES, 

meaning  of . 26 

PLEDGEE, 

not  entitled  to  value  of  use  as  damages 581 

of  stolen  goods,  when  liable  for 364 

of  goods  obtained  by  fraud,  replevin  lies  against 338 

PLURIES, 

returnable,  and  the  reason. I3 

PONE, 

writ  of 24 

POSSESSION, 

plaintiff  must  show  a  right  to . . 32,  94 

right  of,  in  replevin,  always  in  issue 102 


470  INDEX. 

SECTION'. 

POSSESSION  —  Continued. 

right  of,  sufficient  to  entitle  the  party  to  recover 107,  115,  683 

temporary  right  to,  will  sustain  replevin 131 

to  sustain  replevin,  must  be  rightful 678 

prior  riglitful,  sufficient  title  against  all  but  the  owner  ..110  et  acq. 

must  be  under  a  claim  of  right 115 

need  not  be  under  a  claim  of  title 115 

by  finder  of  goods 110 

right  to,  does  not  depend  on  former 167 

right  of,  may  alone  be  put  in  issue -  672 

obtained  by  force  or  fraud  confers  no  right 310 

prior  rightful,  urima  facie  title 109  et  acq. 

chief  question  at  issue  in  replevin 39 

owner  usually  entitled  to 122 

ownership  right  to,  may  be  in  different  persons 97 

prior  rightful 114 

when  sufficient  to  sustain  replevin 109  et  seq. 

by  an  officer,  is  not  possession  by  the  creditor  in  the  process  143 

after  dismissal 149 

neglect  to  deliver,  when  not  a  conversion 138,  139 

by  defendant,  parting  with  to  avoid  writ 135 

taken  as  an  act  of  charity,  no  conversion 357 

does  not  authorize  a  sale 312 

if  rightful,  in  defendant,  demand  necessary;  if  wrongful, 

not  necessary 343  et  seq. 

actual,  by  defendant,  necessary  to  sustain  replevin 137 

defendant  must  be  party  who  has,  when  suit  brought 134 

exception — 135 

contract  to  purchaser  does  not  confer  right  to _  129 

of  property,  pending  suit 37 

under  writ  of  replevin,  does  not  confer  title 476 

when  defendant  allowed  to  retain 40 

conflicting  claims  to 114 

PRESUMPTIONS, 

in  favor  of  an  officer 294 

as  to  quality  of  goods  converted 556 

PROPERTY  IN  PLAINTIFF, 

declaration  must  allege 672 

meaning  of  the  term  in  this  action 96 

must  be  in  existence,  subject  to  manual  delivery 136 

destroyed  before  suit,  action  does  not  lie 136 

sold  to  defraud  creditor,  purchaser  cannot  recover 328 

injuries  to  while  in  plaintiff 's  possession 471 

sale  of,  pending  suit  in  replevin 469 

taken  on  writ,  is  in  custody  of  the  law 470 

rights  of  plaintiff  to,  pending  suit 472  et  seq. 

acquired  by  the  plaintifi"  by  the  writ 469 


INDEX.  471 

SECTION,, 

PROPERTY  IN  PLA.mTlFF  — Continued. 

rights  of  determined  in  the  replevin  suit  cannot  be  ques- 
tioned in  suit  on  bond 447 

plea  of,  necessary  to  return 491 

PROFITS, 

real  or  probable,  when  may  be  allowed  as  damages ...  573 

how  far  expected,  enter  into  damages -  573 

expected,  of  illegal  business  not  allowed  as  damages 573 

PROCESS, 

no  protection  to  officer  where  the  levy  is  wrongful 251 

PROSECUTION  WITH  EFFECT, 

what  is 416 

PURCHASE, 

contract  for  does  not  give  right  of  possession » 129 

of  interest  of  one  joint  tenant 164  et  seq. 

of  property  in  adverse  possession  of  another 639 

by  insolvent,  on  credit,  believing  himself  solvent 330 

at  sheriff's  sale,  if  sale  wrongful,  no  title  passes 133 

of  chattels  at  tax  sale,  must  show  title  through  valid  judg- 
ment   242 

PURCHASER, 

from  agent  must  know  extent  of  his  authority .... ..  812 


R. 

RAILROAD  AGENT, 

demand  upon  sufficient 379 

REAL  ESTATE, 

replevin  does  not  lie  for 58 

title  to  cannot  be  tried  in  replevin 79,  80 

title  to,  when  evidence  in  replevin 79,  80 

■what  is  may  be  investigated 64,  293  et  seq. 

writ  does  not  authorize  a  severance  of  chattels  from _       293 

mortgagee  of,  when  he  may  recover  chattels  severed 90  et  seq. 

chattels  taken  and  annexed  to.. 221 

property  severed  from,  replevin  lies 76 

property  severed  from,  value  as  chattel  only  recovery 612 

RECEIVER  OF  COURT, 

goods  lawfully  in  custody  of,  not  repleviable 247 

RECEIPTOR  TO  OFFICER, 

rights  of 131 

RECOUPMENT, 

plea  of,  to  an  avowry  of  cognizance 734 

cannot  be  had  in  replevin 630 

RECORD, 

of  judgment  in  replevin,  not  evidence  of  title .      102 


472  INDEX. 

SECTIOir. 

RECORD  —  Continued. 

of  replevin  suit,  how  far  material  to  suit  on  bond 444 

RECORDARI, 

writ  of 24 

REFUSAL  TO  DELIVER, 

reason  for  must  be  stated 380,381 

proof  of  raises  presumption  of  conversion 351,  364,  372 

how  interpreted 346,  349 

by  servant,  when  proper 381,  382 

to  agent,  when  justified 380 

what  sufficient  excuse  for 381 

qualified,  when  proper 380 

o tier  to  deliver  at  another  place 383 

RELEASE  OF. SECURITIES, 

by  delivery  of  ihe  goods  to  another  on  order  of  the  court..  460 

a  release  of  the  sheriff 387 

REMOVAL  OF  PROPERTY, 

after  writ  issued,  effect  of ..  467 

RENT, 

how  payable 728 

was  the  property  of  the  landlord 716 

payable  in  anything  which  was  certain 728 

distress  for  non-payment  of 719 

REPLICATION, 

to  plea  of  property  in  third  person 690 

topleaof  property  in  a  stranger 698 

REPLEVIN, 

origin  of,  unknown . . 1 

a  mixed  action 34 

by  writ  before  the  Statute  of  Marlbridge 3 

defined  in  the  Mirror 1 

by  Britton 1 

by  Blackstone 10 

ascribed  to  Glanvil 1 

^Srst  appearance  of  among  lex  scripta 2 

in  wfinitum,  statute  against 26,  27 

for  the  recovery  of  distresses 5 

allied  to  the  law  of  distress 2 

ancient  writ  of,  authorized  the  sheriff  to  act  as  judge 10,  18,  19 

writ  of,  issued  only  at  Westminster 15 

a  writ  of  right 35 

ancient  writof,  not  returnable 10 

writ  alias  and  pluries  issued  at  one  time 13 

sheriff's  duty  in  case  of  resistance 18 

by  plaint 17 

defects  remedied  by  Statute  of  Marlbridge 3 

growth  of  the  law  of - .  6 


INDEX.  4  <  3 

SECTION. 

REPLEVIN  —  Continued. 

existed  before  chancery  was  known 1 

damages  anciently 23 

ancient  mode  of  trial - 20 

ancient  writ  of,  did  not  lie  to  try  title 12 

no  delivery  where  defendant  claimed  title 12 

ancient  writ  of,  did  not  contain  summons  to  the  defendant.  10 
under  modern  practice  — 

definition -  31 

primary  and  secondary  object  of -  33 

im  portance  of  the  action -  38 

peculiarities  of  the  action -  37 

a  favorite  of  the  law --  21 

called  a  violent  remedy 38 

when  the  only  available  remedy 38 

a  proceeding  partly  in  re7n 34 

forms  of  in  different  States 36 

for  what  it  lies  — 

only  for  chattels 58,  60 

what  are  chattels 58 

for  domestic  animals -  59 

when  for  buildings -  61 

bonds  which  can  be  identified 59 

money  in  a  bag  or  box 59 

records  of  a  parish  or  corporation 59 

wool  shorn  from  animals 59 

young  of  animals  born  after  suit —  59 

after  change  of  form,  if  goods  can  be  identified...  210 

in  case  of  willful  confusion 197 

where  grain  or  logs  are  mixed 203 

where  form  is  changed  by  consent 220 

for  what  it  does  not  lie  — 

an  apprentice  who  is  a  freeman — 59 

clothing  worn  on  the  person -  59 

commission  to  ofl[ice 59 

real  estate 58,  60,  79,  80 

trade  fixtures 67 

money,  unless  in  box  or  bag _. 59 

goods  in  custody  of  the  law —  2-13 

by  defendant  in  execution 249 

liquors  seized  to  prevent  sale 252,  253 

for  an  undivided  interest —  154 

when  it  lies 32,43,59.365 

scopeof  the  investigation - --  55 

conflicting  titles  may  be  settled  in 39 

for  specific  chattels  and  damages 81,33 

right  to  present  possession  the  chief  question 39 


474:  INDEX. 

BECTIOir. 

REPLEVIN  —  Continued. 

distinguished  from  trespass  and  trover 46,  4'i 

in  cepit,  detinet  and  detinuet 53 

trespass  and  trover  concurrent  with 44,45 

for  cattle  illegally  impounded 254 

lies  only  for  chattels 58 

formerly  would  lie  only  for  distress 41 

prior  rightful  possession,  when  sufficient  to  sustain 109  et  seq. 

what  is  wrongful  taking. 54 

lies  only  for  goods  capable  of  delivery 170 

"  title  "  or  "  property  "  to  sustain 96 

detention  necessary  to  sustain 53 

possession  in  defendant  necessary 50,134 

when,  after  defendant  has  parted  with  goods  to  avoid  the 

writ 135,  146 

plaintiff  must  show  a  right  to  immediate  and  exclusive  pos- 
session  94 

plaintiff  must  show  that  he  is  the  owner  of  the  identical 

goods  sued  for 168 

for  a  distress  was  wrongfully  taken 717,720 

for  intoxicating  liquors  seized  under  a  void  ordinance 253 

for  powder  seized  under  an  ordinance 255 

against  a  receiver  for  goods  wrongfully  held  by  him 247 

for  goods  wrongfully  sold  on  execution 133 

when  bailee  pledges  goods  without  right 316 

wrongful  taker  cannot  question  title  of  one  in  possession..       121 

for  goods  wrongfully  seized  by  officer 245,  252,  282,  368 

for  goods  seized  for  tax  — 

bare  assertion  of  defendant  that  he  holds  property 

on  a  tax  warrant  not  sufficient 236 

when  no  tax  can  legally  be  levied 238 

where  the  warrant  on  its  face  shows  no  authority.. 

237  et  seq. 

permitted  when  plaintiff  does  not  ask  delivery 234 

after  the  levy  has  been  properly  set  aside 238 

when  the  officer  goes  outside  his  bailiwick 2'^Qetseq. 

lies  from  a  purchaser  at  tax  sale  _  242 

lies  for  goods  seized  under  pretense  of  tax  warrant 

where  no  tax  can  legally  be  levied 238 

lies  against  purchaser  at  tax  sale. 235 

for  goods  seized  for  tax  due  from  another 231 

lies  against  purchase  of  goods  sold  for  fine 242 

lies  against  a  purchase  at  sheriff" 's  sale 263 

in  cases  of  fraud  or  trespass  — 

for  stolen  goods 304,  350 

does  not  depend  on  conviction  of  the  thief 308 

fraudulent  purchaser 318,  319,  306 


INDEX.  475 

BECTION. 

REPLEVIN  —  Continued. 

In  cases  of  fraud  or  trespass  —  Continued. 

attaching  creditor  of  fraudulent  purchaser 324 

for  goods  taken  by  a  trespasser 309,  310,  346,  3G7 

when  goods  are  fraudulently  obtained  and  transferred  to  a 

trustee  for  the  benefit  of  creditors.. 147 

against  innocent  purchaser  from  bailee  who  sells  without 

authority 313  et  seq. 

against  "assignee"  of  fraudulent  purchaser 324 

for  goods  fraudulently  purchased  — 

and  transferred  to  pay  debt 338 

return  of  consideration 331 

diligence  required 331 

for  corn  converted  into  whisky 218 

for  goods  which  have  undergone  a  change  of  form 210  et  seq. 

for  goods  sold  to  an  infant  when  he  avoids  payment 327 

against  inkeeper  for  stolen  horse  left  with 315,  370 

for  estrays,  not  posted 360 

goods  sold  by  servant  without  authority 312 

for  goods  paid  for  in  counterfeit  money  or  in  a  worthless 

note 323 

against  carrier  for  goods  wrongfully  taken  and  delivered  to.  S15 

■when  an  agent  sells  goods  in  payment  for  his  own  debt 314 

for  goods  obtained  by  duress 328,  367 

by  owner  of  goods  lost  at  sea  and  sold  by  salvors 127 

by  officer  — 

officer  holding  on  process  may  sustain 130,  300,  644 

no  lien  unless  actual  levy 130 

levy  on  bulky  articles 143 

by  vendor  against  creditor  of  insolvent  vendee 330 

goods  taken  from  servant  or  carrier 128 

what  is  necessary  to  sustain  — 

a  possessory  action 688 

goods  restored  before  suit,  plaintiff  cannot  succeed  670 

detention  the  gist  of  the  action 670 

for  goods  transferred  by  transfer  of  bill  of  lading 194 

lies  after  change  of  form,  but  should  be  brought  before 

goods  are  greatly  enhanced 217 

by  consignor  when  consignee  refuses  to  pay  draft 194 

borrower  cannot  set  up  title 103 

proof  of  forcible  taking  not  necessary 94 

suit  dismissed  defendant  may  show  he  owned  the  prop- 
erty   427 

by  taker  up  of  estray 678 

by  surviving  partner,  when  permitted 647 

plaintiff  must  show  a  right  to  immediate  possession..  96,  107,  108 

for  wrongful  use  of  hired  property 363 


476  INDEX. 

SECTION. 

KEFLEV  llii— Continued. 

when  agent  sells  goods  of  principal  without  authority —  313,  314 

by  an  agent,  when 133 

servant  not  a  proper  defendant 144 

by  an  auctioneer,  when — . 133 

bailee  may  sustain,  against  the  owner 97,  131,  123 

servant  cannot  sustain 115,  044 

lies  for  goods  sold  when  vendor  bought  on  condition 341 

lies  for  goods  purchased  only  where  they  are  separated  or 

distinguished  from  others 18G  et  seq. 

lies  for  bonds  which  can  be  identified 177 

lies  for  goods  sold  by  marks  or  brands 193,  19.1 

description  in  writ  — 

writ  particularly  describes  the  goods 169 

variance  between  writ  and  narr 183 

when  it  may  refer  to  kind  or  quantity 180 

omission  of  words  in  description 183 

strictness  of  the  rule  as  to .,._ 171  et  seq. 

store  and  contents,  when  sufficient 179 

writ  of  return. 184 

goods  mixed  with  those  of  another 197  et  seq. 

selection  bj^  purchaser,  when  sufficient 190  et  neq. 

general,  when  sufficient 179 

when  that  of  different  owners  is  mixed 203  et  seq. 

plaintiff  asserts  continuing  ownership 520 

in  State  court  from  U.  S.  Marshal 273  et  seq. 

from  sheriff,  of  goods  taken  on  execution,  when 

suit  ended,  sheriff  may  retake  and  sell. 299,  477  et  seq. 
from  an  officer,  of  goods  seized  on  execution,  seiz- 
ure on  second  execution  is  a  revival  of  the 

lien  on  the  first _ 477  et  seq. 

does  not  lie — 

against  innocent  holder  who  changes  form  of  goods 

so  as  to  destroy  identity 216 

against  innocent  purchaser  from  fraudulent  pur- 

ch  aser 334  et  seq. 

for  grain,  after  mixture  with  similar  grain  of  oth- 
ers   203  et  seq. 

for  goods  seized  for  a  tax 228,  229 

cross,  not  allowed 245  et  seq. 

for  an  undivided  interest 154,  155 

against  a  receiver  of  court 247 

for  goods  taken  on  execution;  qualifications  of  the 
rule;  execution  must  be  valid,  and  issued  by 

court  of  competent  jurisdiction 251 

after  change  of  form  destroying  identity 314 

for  goods,  after  mixture  of  those  of  other  owners,  IdSetseq. 


INDEX.  477 

BECTION. 

REPLEVIN  —  Continued. 

Does  not  lie  —  Continued. 

for  goods  in  the  custody  of  law 243,  253,  256 

for  goods  bought  by  insolvent,  believing  himselt  to 

be  solvent 330 

for  colt  expected  to  be  foaled,  nor  for  a  slave  dead.       170 

for  property  not  in  esse 59,  136,  170 

for  property  dc.  Toyed  before  suit  brought 136, 170 

when  plaintiff  consented  to  sale 150 

for  goods  taken  with  owner's  consent 140 

to  settle  partnership  accounts 166 

for  money,  unless  in  a  box  or  bag —      177 

for  goods  purchased,  unless  they  are  separated,  or 

can  be  distinguished .186,  191 

by  divorced  husband  against  wife,  for  goods  in  her 

h  ouse - -      139 

after  dismissal  of  suit  against  same  defendant,  un- 

less  the  goods  have  c^'ne  to  his  possession 149 

for  an  undivided  interest 154 

by  landlord,  for  share  of  the  crop 156  et  seq. 

for  goods  sold  on  condition 341 

upon  a  contract  of  purchase 129 

against  innocent  purchaser,  when 366 

against  innocent  purchaser  from  fraudulent  pur- 
chaser   318,  333 

for  property  seized  for  non-payment  of  tax 224,  227 

for  goods  seized  for  fine 241 

for  clothing  or  ornaments  worn  on  the  person 148 

at  suit  of  defendant  in  execution 248 

nor  by  a  grantee  of  such  defendant  after  suit      249 

reason  for  the  rule 250 

for  liquors  seized  under,  to  permit  sale 252 

against  one  for  taking  his  own  property 51,  246 

for  clothing  worn  on  the  person 59 

for  papers  in  public  offices 59 

for  a  commission 59 

for  goods  sold  to  enable  purchaser  to  violate  law  ..      326 
for  taking,  unless  there  is  a  detention  or  conversion      355 

for  non-payment  for  goods  sold  on  credit 340 

upon  proof  that  the  defendants  were  about  to  take 

possession -       137 

after  sale  in  good  faith  or  destruction  of  property  .      135 

for  building  fixed  to  land 76,77 

of  property  severed  from  real  estate 612 

crops  harvested  after  ejectment 85  et  seq. 

by  mortgagee  of  land,  when  he  may  recover  chat- 

tels  severed - 90  ^t  seq. 


478  INDEX. 

BECTION. 

REPLEVIN  —  Continued. 

Does  not  lie  —  (Jontinued. 

for  chattels  fixed  to  land  of  another. 77 

for  chattels  severed  from  real  estate  by  a  trespas- 
ser   81,  82,  84  et  seq. 

for  chattels  severed  from  real  estate  by  one  holding 

color  of  title 81,  83 

for  chattels  severed  from  real  estate  by  one  in  pos- 
session holding  color  of  title 82  et  seq. 

for  chattels  annexed  to  real  estate G2,  76,  221 

for  chattels  reraovedafter  ejectment 78 

after  goods  have  become  pajt  of  another  thing  which 

is  the  principal _ 213 

disposition  of  property  pending  suit 480 

rule  concerning  perishable  goods  pending  suit 471 

pending  suit,  plaintiff's  rights  only  temporary 477  et  seq. 

damages  and  value  in — 

damages  in  —  compensation  the  object 530 

value  of  use,  as  damagi^s,  peculiar  to  replevin 580 

suit  cannot  be  dismised  to  avoid  a  hearing  on  ques- 
tion of  damages  --  516 

damage  must  be  claimed  in  declaration 512 

damages  in,  only  an  incident -  513 

■when  defendant  puts  it  out  of  power  to  serve  the 

writ 146 

value  recoverable  in 33 

damages  recoverable  in 31 

damages  settled  in  replevin  suit 608 

for  leased  property  does  not  lie  by  owner  pending 

the  lease 98 

plaintiffs  owning  separate  interests  cannot  join 155 

does  not  lie  at  suit  of  one  joint  tenant  against  his 

co-tenant 152  et  seq. 

for  goods  taken  by  officer,  what  is  a  sufficient 

taking 142 

legal  title  will  prevail  over  equitable 105 

effect  of  on  landlord's  lien 739 

not  dismissed  for  officer's  neglect 714 

by  surviving  partner 159 

effect  of  death  of  party  on  suit 801 

defense  by  sheriff' 303 

against  executor  and  administrator  must  be  against 

him  personally 637 

parish  or  corporation  may  bring 638 

proceedings  in  suit  essential  to  suit  on  bond 443 

writ  of — 

without  bond  quashed 389 


INDEX.  4  <  9 

BECTION. 

REPLEVIN  —  Continued. 

Writ  of —  Continued. 

for  an  undivided  interest  quashed 152,  154 

must  contain  summons  to  defendant 464 

mandate  for  delivery --      4G-> 

must  describe  the  goods "".""      ^^~^ 

lies  for  ffoods  in  jurisdiction  of  court  when  it  is- 

sued - - 407 

rights  which  it  confers  on  plaintiff 469,  4i2 

does  not  divert  title  pending  suit. 470,  476  et  seq. 

set  aside,  effect  on  property ---       259 

may  issue  without  order  for  delivery  of  goods...  151,  396 

must  appear  to  be  valid 298 

how  far  a  protection  to  officer  serving  it 264 

return  to,  how  far  conclusive 297 

what  return  must  show 468 

how  far  a  protection  to  officer 298 

sei-vice  of  writ 264,  265 

officer  must  serve  writ  promptly - 292 

does  not  authorize  seizure  from  defendant's  person      286 
officer  cannot  take  the  goods  from  a  stranger  to  it. 

265  et  seq. 

•when  authority  to  enter  a  dwelling 287 

points  out  the  identical  goods 298 

duty  of  officer  serving 283,  298 

RESCINDING  A  SALE, 

for  fraud ^^^ 

return  of  the  consideration ^'^1 

diligence  required ^^1 

RESTORATION  OF  GOODS, 

a  bar  to  replevin,  reason 134, 135 

no  bar  in  trespass 1^5 

exceptions  to  rule 135 

RESISTANCE. 

to  sheriff,  his  duty 18 

RETURN. 

defendant  may  claim - ^'_ 

bond  with  security  for 27,  29,  385 

condition  in  bond  to  make 419 


where  bond  is  not  given. 


391 


ordered  only  when  it  appears  just -      485 

pleadings  must  claim 482 

adjudiied  only  where  defendant  claims  it 482,  487 

formal  prayer  for  not  essential 489 

prayer  for  should  state  facts - 487 

defendant  asking  must  show  affirmatively  a  right  to 302,  487 

prayer  for  in  the  nature  of  a  cross-action 481,  487 


480  INDEX. 

SECTION. 

RETURN  —  Continued. 

defendant  suing  for  is  an  actor 481 

rights  of  parties  at  the  time  of  judgment  controls.. 496,  497 

judgment  for  usually  follows  verdict  for  defendant 494,  495 

what  is 149 

defendant  entitled  to  reasonable  time  to  comply  with  judg- 
ment for 778 

no  arbitrary  rule  governing  award 503 

plaintiff  cannot  dismiss  to  avoid  a  decision  on  the  ques- 
tion  of 483 

■when  question  should  be  determined 503 

ordered  only  after  an  investigation 372,  485,  503 

order  does  not  follow  a  verdict  as  a  matter  of  course 485 

not  awarded  to  one  who  had  no  right  to  possession 485 

part  of  property  may  be  ordered  returned 486 

may  be  adjudged  to  one  of  several  defendants. 486 

part  of  property  ordered  to  one,  part  to  another  defendant..  488 

never  ordered  unless  property  was  delivered  on  the  writ 499 

where  plaintiff  had  a  limited  interest  in  the  property 501 

■when  defendant  avoids  trial  on  merits 501 

insolvency  of  defendant  not  a  bar  to __ 495 

■when  awarded  upon  plea  of  non  detinuet 714 

where  goods  are  delivered  without  bond 391 

plaintitl"  not  liable  for,  unless  ordered 483 

trespasser  cannot  have,  on  plea  of  property  in  third  person  493 
defendant  cannot  have,   under  plea  of  non  cepit  or  non 

detinet 705 

■when  judgment  for  does  not  settle  question  of  title  to 

property 494 

■whether  it  will  be  adjudged  when  defendant  succeeds  on 

plea  in  abatement 501,  503 

adjudged  and  not  made  a  breach  of  the  condition  to  return  423 
judgment  for,  not  necessarj-  to  constitute  a  breach  of  other 

conditions 415 

award  of,  not  necessary 428,  431 

advisable  when  not  ordered,  when 483 

damages  to  compel 607 

liquors  sold  to  enable  vendee  to  violate  law  returned  to 

sherilF 505 

burden  of  proof  against,  is  in  plaintiff 495 

■where  writ  abates  by  mistake  of  clerk 501 

■when  adjudged  for  failure  to  prove  demand 373 

prayer  for,  when  waiver  of  demand 374 

does  not  necessarily  follow  failure  to  prove  demand 373 

offer  unaccompanied  by  tender,  not  sufficient 420 

a  compliance  with  the  condition  to 426 

to  joint  defendants  joint  plea  necessary  to. 683 


INDEX.  481 

SECTION. 

RETURN  —  Continued. 

awarded  when  parties  are  joint  tenants 506 

not  awarded  OQ  verdict  of  "not  guilty" 489 

exception  to  this  rule  in  justice's  court 490 

upon  plea  of  non  cepit  or  non  detinet  return  not  ordered 487 

duty  of  plaintiff  when  return  ordered .-  484 

duty  of  plaintiff  in  case  of  perishable  property -  480 

delivery  of  the  property  to  another  by  order  of  court  pend- 
ing suit  equivalent  to 460 

,    when  adjudged  on  plea  of  property  in  third  person 492 

right  of  detendant  to,  under  a  plea  of  property  in  third 

person 693 

judgment  for  value  only  where  a  return  would  be  proper  ..  491 

damages  only  allowed  where  defendant  is  entitled  to 605 

taking  by  sheriff  on  execution,  when  regarded  as 477 

wool  from  sheep  pending  suit  not  returned,  damages  to 

compensate 500 

of  young  of  animals  born  pending  suit 500 

who  must  be  made  to 291 

'  property  may  be  taken  on  writ  of. 475 

landlord  may  have  judgment  for  goods  distrained 739 

writ  of  description  in,  may  follow  writ 184 

only  authorized  takes  from  the  person  named 267 

writ  of,  must  describe  the  goods 510 

goods,  when  returned,  must  be  in  as  good  order  as  when 

taken 422,485 

of  the  identical  goods  necessary 421 

RETURN  OF  CONSIDERxlTlON, 

on  rescinding  a  sale  for  fraud 331 

when  must  be  made 331 

what  amounts  to 331 

RETURN  OF  OFFICER. 

of  the  writ,  what  it  must  show 297,  468 

REWARD  OFFERED, 

finder  entitled  to,  before  delivery 118,  359 

REVENUE,  PUBLIC, 

replevin  must  not  be  permitted  to  interfere  with 224  et  seq. 

RIGHTFUL  POSSESSION, 

what  is 365 

sufficient  against  wrong-doer 156,  678 

sufficient  to  sustain  replevin  against  owner 121 

whetlier  suflicient  to  sustain  replevin 96,  678 

continues  to  be  rightful 346 

by  one  joint  tenant 161 

from  one  who  wrongfully  took  demand,  when  necessary 347 

agent  may  have 132 

contract  to  purchase  does  not  confer 129 

31 


482  INDEX. 

BECTION. 

RIGHTS, 

of  plaintiflF  pending  suit  only  temporary 472,  477  et  seq. 

RIGHT  OF  PROPERTY, 

carries  with  it  a  right  to  possession . 122 


S. 

SALE, 

of  goods,  when  plaintift  estopped  by 150 

in  good  faith,  replevin  does  not  lie  after 135 

on  credit,  non-payment  does  not  warrant  rescission 340 

by  thief  or  trespasser  conveys  no  title 215,  334,  366 

by  fraudulent  purchaser 334 

by  bailee  for  less  price  than  authorized 317 

without  authority 314 

of  goods  upon  conditions 339 

where  vendor  stipulates  to  retain  title 341 

of  chattels  mortgaged  does  not  defeat  mortgagee 223 

on  conditions  not  complied  with,  replevin  lies  against  cred- 
itor seizing 342 

on  execution  conveys  all  the  title  the  defendant  had 300 

for  taxes,  if  illegal,  does  not  transfer  title .  235 

owner  may  replevy  from  purchaser  at 235 

of  property  by  plaintiff  pending  suit 469,  470,  472 

pending  suit  does  not  aflect  the  rights  of  the  real 

owner 476 

when    plaintiff   is    defeated    owner   may 

replevy 476 

of  perishable  property  pending  suit 480 

SALVORS, 

sale  by,  conveys  no  title 127 

have  a  lien  on  goods  saved 127 

SEARCH, 

when  sheriff  may  enter  dwelling 287 

SEAL, 

bond  must  be  under 408 

SECOND  DELIVERANCE, 

writ  of 27 

SECURITIES, 

plaintiff  required  to  give 29 

sheriff  must  take  before  delivery 289,  463 

two  required 385, 409 

bound  by  the  acts  of  principal 433 

liable  for  express  covenant  only 429 

9n  bond  held  to  a  strict  liability 437 

liability  of,  not  extended  by  implication 430 

not  liable  for  a  greater  sum  than  the  penalty  of  the  bond  ..  433 


INDEX.  483 

SECTION. 

SECURITIES  —  Continued. 

have  a  right  to  make  return  if  adjudged 429 

not  liable  for  costs  unless  so  provided . 433 

bound  by  the  result  of  suit 429,  433 

not  bound  or  discharged  by  settlement  without  their  consent  434 

not  bound  by  arbitration 435 

liable  though  the  name  of  co-security  was  a  forgery 437 

liable  only  for  damages  adjudged,  when ._ 430 

defandant  may  except  to 289,  399 

excepted  to  failing  to  justify  does  not  discharge  them 446 

cannot  be  released  by  deposit  of  money 408 

on  plaintiff's  bond  not  liable  when  defendant  retains  the 

possession 395 

return  of  nulla  bona  as  to,  not  conclusion  as  to  their  sol- 
vency    387 

on  bond  may  be  released  and  others  substituted . 408 

court  may  order  new  to  be  furnished ^„ 409 

discharged  by  delivery  of  the  property  on  order  of  the  court  400 

SERVANT, 

possession  of,  is  possession  of  the  master 144 

selling  goods  without  authority  can  convey  no  title 312 

not  a  proper  defendant  for  master's  goods 144 

refusal  to  deliver  by,  when  not  a  conversion 381,  382 

demand  upon,  not  sufficient 375 

cannot  sustain  replevin 115,  644 

goods  taken  from  owner  may  have  replevin 128 

SERVICE, 

bond  given  after,  is  valid 439 

must  be  in  a  legal  manner 284 

improper,  an  alias  may  issue 460 

SEPARATION, 

of  goods  sold   from   bulk,  what  is  sufficient  to  sustain 

replevin .193  et  seq. 

of  goods  mixed,  when  immaterial  and  impossible 205  et  seq. 

SET-OFF, 

question,  how  far  investigated  in  replevin 631 

SETTLEMENT, 

does  not  discharge  securities 434 

SEVERANCE, 

of  property  from  real  estate 293 

does  not  change  title _. 73 

what  amounts  to 09 

SEVERAL  DEFENDANTS, 

each  entitled  to  demand 375 

SHERIFF, 

by  ancient  writ  authorized  to  act  as  judge . . .  11 

authority  of,  under  the  writ  of  non  omittas 14 


484  INDEX. 

BBCTION. 

SHERIFF  —  Continued. 

when  interested,  bond  must  be  to  coroner 394 

required  to  have  four  bailitl's  for  the  purpose  of  making 

replevin 18,  note  1 

executed  process  by  bailiff IB,  note  1 

must  take  bond 27.  29,  281,  463 

liable  as  a  trespasser  if  he  served  the  vprit  without  taking 

bond -.. 38.^ 

must  see  bond  properly  executed 410 

must  see  that  the  penalty  in  bond  is  large  enough 400 

responsible  for  sufficiency  of  securities 385,  659 

may  take  property  to  appraise  it 401 

not  bound  by  value  stated  in  affidavit 400,  659 

bond  payable  to,  when 403,  437 

bond  originally  designed  to  indemnify 398,  427 

duty  to  return  the  bond  with  the  writ 399 

may  assign  bond  to  defendant 29,  385,  387 

assignment  of  bond  does  not  release 387 

a  release  of  the  securities  releases --      387 

parties  to  suit  on  bond  cannot  discharge  it  to  his  injury 456 

when  may  pursue  property  to  another  county 467 

might  break  and  enter  house 13 

when  prior  possession  of,  is  sufficient 687 

property  taken  on  a  writ  of  replevin  in  custody  of 476  et  seq. 

must  obey  process  at  his  peril 260 

wrongful  levy  of  execution  on  goods  of  a  stranger  to  it  200  et  seq. 

acquires  special  property  in  goods  levied  on 130,  300 

title  acquired  by  execution  not  divested  by  replevin 477 

taking  goods  on  second  execution,  when  regarded  as  a  re- 
turn to  him - 477 

seizing  property  which  has  been  replevied  from,  is  equiva- 
lent to  a  return  426 

execution  not  sufficient  without  judgment  to  support  a  claim 

for  return 687 

damages  against,  in  suit  by  assignee  of  creditor 568 

damages  to,  as  against  a  stranger 593 

damages  to,  as  against  general  owner 593 

not  entitled  to  value  of  use  as  damages 581 

liable  for  damages  for  wrongful  seizure 590 

acting  in  good  faith,  exemplary  damages  not  allowed 591 

return  of,  upon  writ. 468 

what  his  return  must  show 297 

plea  by,  must  show  his  process .       686 

suit  by,  may  be  in  his  individual  name 463 

See  Officer. 
SLAVES, 

replevin  liesfor — .....................        60 


INDEX.  485 

SECTION. 

SPECIFIC  PROPERTY, 

recovery  of,  the  primary  object 33 

SPECIAL  PROPERTY, 

sufficient  to  sustain  replevin 116  et  seq. 

acquired  by  officer  by  levy  of  process 130,  300 

.owner  of,  may  sustain  replevin . ..  122  et  seq. 

SPECIAL  DAMAGES, 

must  be  alleged  in  declaration 671 

STATE  COURT, 

replevin  in,  against  United  States  Marshal 21^  et  seq. 

STATUTES,  ENGLISH, 

the  foundation  of  law  concerning  bonds  in  this  country 386 

STATUTE, 

17  Car.  2,  Ch.  7 28,  385 

11  Geo.  2,  Ch.  19,  §  23 385 

21  H.  8,  c.  19  allowed  damages  to  defendant 23 

Westm.  1,  Ch.  17 287 

Westm.  2d 27 

3  and  4  W.  «fc  M 547 

STATUTE  MARLBRIDGE, 

how  came  to  be  enacted 2,  4 

defects  in 26 

STATUTORY  BOND, 

necessary  before  delivery 390 

STATUTORY  PROCEEDINGS, 

on  b;md 440 

STOLEN  PROPERTY, 

thief  takes  no  title 305,  311 

owner  may  retake.. 305 

demand  not  necessary  for 347 

deposited  with  a  carrier,  owner  may  replevin 370 

innocent  receiver  of,  when  liable 304 

SUIT, 

when  must  be  brought,  as  affecting  damages 553,  554 

change  of  ownership  pending,  effect  of. 496,  497 

on  bond  — 

defendant  may  bring,  ■when.. 387 

irregularities  in  issuing  writ  will  not  defeat 446 

material  facts  in  replevin  suit  must  be  set  up 444 

SUNDAY, 

bond  executed  on,  void 409 

excluded  in  computing  time  for  giving  bond 409 

SUMMARY  PROCEEDINGS  ON  BOND, 

can  only  be  resorted  to  where  the  bond  conforms  to  the 

statute 440 

SURETIES  AND  PLEDGES, 

meaning,  etc.,  of 80 


486  INDEX. 

SECTION. 

SURVIVING  PAETNER, 

entitled  to  possession  may  sustain  replevin 647 

SURRENDER  OF  PROPERTY, 

by  order  of  court  pending  suit,  when  a  defense 699 

before  suit  a  bar  to  damages 513 

SYMBOLIC  DELIVERY, 

when  sufficient  to  sustain  replevin . 194 


T. 

TAKING. 

what  is  a  wrongful 54 

time  and  place  must  be  stated 673 

not  necessarily  a  conversion 353,  355 

owner  taking,  when  not  liable  in  replevin 51 

as  an  act  of  charity,  not  a  conversion 356 

by  thief  or  trespasser  from  a  thief  or  trespasser,  owner  need 

not  demand 350 

actual,  necessary  to  sustain  replevin 137 

by  an  officer,  what  is  a  sufficient 143 

an  agreement  to  take  will  not  sustain  replevin 137 

TAX  WARRANT, 

property  seized  on,  not  repleviable 224:  etseq.,  661 

form  of,  prohibition  of  replevin  in  such  cases 228 

irregularity  in,  cannot  be  tried  in  replevin 225  et  seq. 

must  be  regular  on  its  face 237 

must  purport  to  be  issued  by  regular  authority 236 

sham  warrant  no  defense 237 

must  be  for  a  tax  which  may  legally  be  levied 237  et  seq. 

officer  levying  cannot  go  out  of  his  bailiwick 239 

defendant  must  produce 236 

bare  assertion  by  defendant  that  holds,  not  sufficient 236 

TAX, 

seizure  for  must  be  by  an  officer 239 

seizure  for  tax  of  another  person 231 

property  seized  for,  owner  may  sue  in  trespass  or  trover 233 

TAX  SALE, 

if  illegal  does  not  transfer  title 235 

and  the  owner  may  replevy  from  purchaser 235 

TENDER, 

necessary  to  a  compliance  with  order 429 

of  rent  need  not  be  brought  into  court 721 

TENANCY  IN  COMMON. 

how  produced  by  mixture 197  et  seq. 

by  confusion,  does  not  arise  unless  separation  is  impos- 
sible  198  et  seq. 


INDEX.  4:87 

SECTION. 

TENANT, 

may  pay  rent,  and  take  goods  distrained 472 

THIEF, 

takes  no  title 304,  311,  366 

and  can  convey  none. 315,  334 

change  in  form  of  stolen  goods  by,  does  not  change  title...      215 
distinction  between,  and  fraudulent  purchaser 334 

THIRD  PERSON, 

plea  of  property  in -       689 

TIMBER  CUT, 

damages  in  such  case 563,  567,  615,  616 

when  value  estimated 614,  616 

when  mortgagee  may  recover 90  et  seq. 

TITLE, 

evidence  of,  must  not  be  stated 672 

tried  in  replevin 39 

what  is  sufficient 96 

not  necessary  to  sustain  replevin. 21 

prior  rightful  possession,  when  sufficient 109 

not  necessarily  determined  in  replevin 102 

facts  must  be  averred  without 672 

not  changed  by  severance  from  real  estate 73 

bailee  without  authority  cannot  convey 312  et  seq. 

assertion  of,  by  a  trespasser.. 89 

not  affected  by  delivery  on  writ  of  replevin 476  et  seq. 

acquired  by  plaintiff  pending  suit 470 

when  the  issue,  good  must  be  shown. 120 

TRADE  FIXTURES, 

replevin  for 67 

TRAVERSE, 

denial  of  plaintiff's  right 696 

TREES, 

replevined  for 69 

TRESPASS, 

one  taking  his  own  goods  peaceably  is  not _      246 

takes  no  title -. -      306 

acquires  no  title  by  his  trespass 309 

cannot  convey  title  by  sale 215 

distinguished  from  replevin 45,  47,  48 

when  concurrent  with  replevin 44 

not  necessarily  a  conversion 355 

when  a  conversion 362 

enhancing  value ..--      215 

TRESPASSER, 

cannot  plead  property  in  third  person  and  have  return .      693 

cannot  defend  on  plea  of  property  in  a  third  person ._      492 

increasing  value  by  his  labor 567 


4S8  INDEX. 

SECTION. 

TRESPASSER  — Continued. 

cannot  be  allowed  to  make  a  profit 568 

cannot  resist  claim  for  damages  by  showing  destruction  of 

property COO 

who  sells  goods  cannot  compel  the  owner  to  accept  the 

price  at  which  they  were  sold 507 

TRESPASS  OR  TROVER, 

for  goods  wrongfully  seized  for  tax .-      233 

TRIAL, 

ancient  method  of _.  20,26 

right  to  begin  and  conclude 790 

governed  by  facts  existing  when  suit  was  begun 496,  791 

all  matters  in  dispute  in  the  case  should  be  settled 793 

TROVER, 

distinguished  from  replevin 47,48 

when  concurrent  with  replevin 44 

TRUSTEES, 

may  sustain  replevin - — 636 


U. 

UNITED  STATES  MARSHAL, 

replevin  against,  by  writ  from  State  Court 273 

See  Sheriff;  Officer. 
USE, 

value  of,  damage  peculiar  to  replevin 580 

never  allowed  in  trover 520 

when  allowed  as  damages 520,579 

when  value  of  is  awarded,  other  damages  not  allowed 583 

value  of  not  allowed  a  pledgee 581 

or  one  who  has  no  right  to  use ..  581 

not  allowed  as  damages  unless  the  property  was  valuable 

for  use - - 583 

cannot  be  recovered  with  depreciation ...  535 


V. 

VALUE, 

recoverable  in  replevin 83,  34 

effect  of,  judgment  for.. 779 

judgment  for,  effect  of  on  securities 431 

place  where,  attaches 503 

at  the  place  of  takmg 562  et  seq. 

evidence  of,  at  an  adjacent  market 563  et  seq. 

removal  of,  as  affecting  question  of  damages 562  et  seq. 

highest  market,  what  is 555,  556 


INDEX.  489 

SECTION. 

VALUE  —  Continued. 

Highest  market  —  Continued. 

at  an  adjacent  market,  as  showing 563 

between  conversion  and  judgment,  when  allowed..  549 

qualifications  of  the  rule  allowing 553,  554 

•when  regarded  as  attaching 54") 

when  estimated  from  time  of  conversion 546 

when  fluctuating  or  unchanging 531,  583 

diminution  in,  not  allowed  when  use  is  given. 535 

changes  in,  and  the  elTect  on  question  of  damages 554 

depreciation  in,  when  an  element  of  damages... 534 

change  in,  by  labor  of  defendant  trespasser  cannot  recover.  567 

when  given  as  damages  in  suit  on  bond - 458 

and  damage  must  be  separately  assessed 610 

of  various  articles  stated  in  gross 4o4 

of  separate  articles,  when  verdict  must  find 761 


when  verdict  must  find. 

defendant  not  entitled  to,  unless  he  show  himself  entitled 


60 


491 
to  return --- 

not  adjudged  to  defendant  unless  he  claim  and  show  property  491 

when  a  measure  of  damages b^d  et  seq. 

of  goods  not  obtained  on  the  writ 539 

interest  upon,  from  when  computed 538 

option  to  pay  or  return 606 

defendant  cannot  pay  in  lieu  of  return 423 

defendant  liable  for,  after  death  or  destruction  of  the  chattel  455 

mode  of  ascertaining,  to  fix  penalty  in  bond 400 

maybe  agreed  upon ^^-^ 

400 

parties  may  agree  upon ^^^ 

stated  in  bond,  how  far  binding 4o3 

bond  must  state ^^"^ 

whether  to  be  stated  in  writ 405 

stated  in  affidavit,  may  be  taken  in  fixing  bond 659 

appraisement  of,  not  binding  in  assessment  of  damages 570 

appraisement  of,  how  far  binding 453 

stated  in  aflSdavit,  how  far  binding  on  the  parties 569,  660 

stated  in  aflidavit,  how  far  binding  on  sheritt' 659 

VARIANCE,                                                                .         V     ^  ^^1 

between  bond  and  affidavit  no  defense  to  suit  on  bond 4.')1 

between  bond  and  affidavit  must  be  pleaded  in  replevin  suit  451 

between  writ  and  declaration l^*^ 

VENDOR, 

having  voidable  title,  when  may  convey  good  title -..  rfOb 

when  he  may  sustain  replevin  against  a  creditor  of  an  in- 

solvent  buyer ^^^ 

VERBAL  GIFT, 

not  valid  without  delivery ^^^ 


490  INDEX. 

BECTION. 

VERDICT, 

court  may  correct  form  of 740 

court  cannot  change  substance  of 740 

each  party  a  right  to  submit  all  proper  issues 745 

each  party  has  a  right  to,  on  all  issues 741 

must  pass  on  all  issues.. 743,  745 

exactness  required  in  replevin 740,  749 

separate  defendants  may  have  separate 756 

may  find  for  both  parties 744 

against  both,  form  of  judgment 514 

must  be  consistent  with  itself 759 

where  title  and  right  of  possession  is  in  issue,  must  find  on 

both  sides. 749,  750 

general,  not  sufiicient,  when  issues  are  conflicting 574 

must  be  certain 757 

repugnancy  is  fatal 759 

may  be  general  if  it  find  all  the  issues 571,  572,  573 

should  not  merge  different  issues 755 

"  we  find  the  issues  for  the  defendant". 573 

conflicting  issues,  how  settled  in 759 

courts  incline  to  sustain 755 

expressing  opinion  of  law  not  sufficient 763 

property  in  plaintiff,  does  not  find  whether  property  was 

taken  ordetained 749 

for  $28,  on  plea  of  property,  effect  of 573 

"not  guilty;  "  what  responsive  to 746 

statutory  exceptions 747 

return  not  allowed  on 487 

injustice  courts,  a  return  ordered 490,  748 

"for  plaintiff;''  effect  of,  on  several  issues 574 

conditional,  not  sufficient 762 

when  party  has  only  limited  interest 763 

'•for  defendant," on  non  detinuet;  what  it  imports 749 

need  not  be  in  express  words 751 

must  find  damages 764 

when  value  of  property  must  be  found 760 

where  defendant  claims  only  lien 750 

for  defendant,  not  necessarily  followed  by  return 485 

when  valueof  separate  articles  must  be  found 761 

description  of  goods  in,  may  follow  writ 184 

description  of  property  in 757 

VINDICTIVE  DAMAGES, 

meaning  of  term 620 

when  allowed --  618 

actual  malice  must  be  shown 622 

rules  governing  assessment  of 620 

illustration  of  the  rule 623 


INDEX.  4:^1 

SECTION. 

VINDICTIVE  DAMAGES  —  Continued. 

general  rule  governing ^19 

as  against  officer "--*' 

VOID  WRIT, 

no  protection  to  officer 284 


w. 

WAIVER, 

of  right  to  demand ^'^^ 

of  lien;  what  will  amount  to ^^1 

of  defects  in  bond 410 

of  conditions  of  sale;  what  is - 342  et  seq. 

WAREHOUSEMEN, 

entitled  to  lien,  may  sustain  replevin 123  et  seq. 

WARRANT  FOR  TAXES.    See  Tax  Warrant. 
WATCH  WORN  ON  PERSON, 

not  subject  to  writ  of  replevin 286 

WILLFUL  CONFUSION  OF  GOODS, 

all  belong  to  innocent  party 197  ^i  seq. 

WITHERNAM, 

writ  of 25 

WRIT, 

of  replevin,  anciently  not  returnable 10,12 

alias -dnd  pluries 24 

pluries,  returnable - --  13 

non  omittas 1^ 

of  ^o«,e  and  recordari 24 

issued  only  at  Westminster 15 

a  writ  of  right 35 

anciently  authorized  sheriff  to  act  as  judge 11 

anciently  did  not  contain  summons  to  defendant 10 

must  contain  summons  to  defendant 34,464 

de  proprietate  probanda 12 

of  second  deliverance 27 

alias  may  issue  to  another  county 4G6 

when  may  issue 446 

not  dismiss  for  officer's  neglect - -  "14 

issued  without  affidavit,  a  nullity 651 

need  not  show  that  affidavit  has  been  filed 405 

must  follow  affidavit 653 

must  describe  the  goods  so  that  the  officer  can  find 171 

description  in,  must  be  certain 181  et  seq. 

when  must  describe  the  goods 465 

when  description  not  essential 465 

must  describe  the  goods  particularly 169 

officer  may  refuse  to  serve  if  description  is  uncertain  ...181  et  seq. 


492  INDEX. 

SECTION. 

^Nll^:— Continued. 

need  not  state  value  of  goods 463 

to  whom  addressed 463 

amendment  of,  by  addressing  to  coroner 463 

bond  a  prerequisite  to  delivery  on _  387 

delivery  on,  conditional  upon  the  prior  execution  of  bond..  33? 

service  without  bond,  sheriff  liable ._  885 

mandate  for  delivery  on 463 

need  not  show  that  bond  was  filed 465 

does  not  authorize  seizure  from  person  of  defendant 286 

power  and  duty  of  officer  with 283 

officer  must  serve  writ  promptly _.  292 

how  must  be  served 292 

officer  must  see  that  it  is  valid  on  its  face 298 

lies  for  property  in  jurisdiction  of  court  where  it  issued 467 

does  not  lie  for  an  undivided  interest 152  et  seq. 

does  not  authorize  severance  of  real  estate 298 

goods  taken  on,  in  the  custody  of  the  law 257 

does  not  lie  for  property  taken  for  tax 224  et  seq, 

goods  taken  on,  cannot  be  retaken  until  the  court  orders 257 

abatement  of,  return  does  not  necessarily  follow 485 

"writ  quashed  and  goods  returned  when  delivered  without 

bond 387 

may  issue  without  command  to  del  iver 396 

date  of,  not  conclusive  as  to  when  suit  was  begun 793 

irregularities  in,  will  nijt  defeat  suit  on  bond 446 

rights  of  plaintiff  under,  pending  suit ^1'i  et  seq. 

rights  of  plaintiff  under,  to  property '^12  et  seq. 

does  not  tend  to  show  title  in  plaintiff 470 

does  not  confer  title 470 

rights  which  it  confers  on  plaintiff 469 

confers  but  a  temporary  right  of  possession 474 

return  of _ 468 

officer's  return  to --  297 

return,  how  far  conclusive - —  297 

of  retorno,  must  describe  the  goods 510 

only  authorizes  seizure  from  person  named 267 

of  withernam - 25 

of  attachment,  sheriff  defending  must  show  a  debt 303 

of  execution,  lien  of,  continuing 426 

WRONGFUL  TAKING, 

what  is - 54,363 

unless  followed  by  detention  will  not  sustain  replevin 134,  135 

demand  not  necessary 345,  848 

proof  of,  to  excuse  a  demand 54 

no  change  to  the  title  by  change  of  form 218 

damages  estimated  from  time  of  taking 534 


INDEX.  493 

BECTIOX. 

WRONGFUL  TAKING  — Continued. 

what  is  sufficient  against  officer 142 

WRONG-DOER. 

not  permitted  to  question  title  of  one  in  possession .  121 

WRONGFUL  DETENTION, 

what  is 54 

the  gist  of  the  action 135 

necessary  to  sustain  replevin 134 

exception  to  this  rule —  135 

averment  of,  essential 675 

will  not  sustain  averment  of  wrongful  taking 653 


Y. 
YOUNG  OF  ANIMALS, 

born  pending  suit  follow  judgment .       500 

plaintiff  may  recover 136 


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